Javier Palacios v. State

• Court: Court of Appeals of Texas
• Decided: March 27, 2019
• Docket: 07-17-00462-CR
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-17-00462-CR

JAVIER PALACIOS, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 108th District Court Potter County, Texas Trial Court No. 73,827-E, Honorable Douglas R. Woodburn, Presiding

March 27, 2019

MEMORANDUM OPINION Before QUINN, C.J., and PIRTLE and PARKER, JJ.

On December 19 and 20, 2017, appellant, Javier Palacios, was tried for the offense

of failure to comply with registration requirements.1 Appellant pled not guilty and the case

proceeded to a jury trial. After hearing evidence, the jury found appellant guilty and, after

hearing punishment evidence, sentenced appellant to forty-five years’ incarceration in the

1 See TEX. CODE CRIM. PROC. ANN. art. 62.102(b)(2) (West 2018). Institutional Division of the Texas Department of Criminal Justice. Appellant timely filed

his notice of appeal. We affirm.

Appellant’s court-appointed appellate counsel filed a motion to withdraw from the

representation supported by an Anders brief. See Anders v. California, 386 U.S. 738, 87

S. Ct. 1396, 18 L. Ed. 2d 493 (1967). In support of his motion to withdraw, counsel

certifies that he has diligently reviewed the record and, in his opinion, the record reflects

no reversible error upon which an appeal can be predicated. Id. at 744; In re Schulman,

252 S.W.3d 403, 406 (Tex. Crim. App. 2008). In compliance with High v. State, 573

S.W.2d 807, 813 (Tex. Crim. App. [Panel Op.] 1978), counsel has discussed why, under

the controlling authorities, there are no reversible errors in the trial court’s judgment.

Counsel notified appellant by letter of his motion to withdraw; provided him a copy of the

motion, Anders brief, and appellate record; and informed him of his right to file a pro se

response. See Kelly v. State, 436 S.W.3d 313, 319-20 (Tex. Crim. App. 2014) (specifying

appointed counsel’s obligations on the filing of a motion to withdraw supported by an

Anders brief). By letter, this Court also advised appellant of his right to file a pro se

response to counsel’s Anders brief. Appellant filed a pro se response in which he

identified communication issues between himself and trial counsel. However, none of

these complaints are reflected in the record. The State did not file a brief.

In the present case, a jury found appellant guilty of the offense of failure to register,

and sentenced him to forty-five years’ incarceration. By his Anders brief, counsel

discusses where in the record reversible error may have occurred but concludes that the

appeal is frivolous. We have independently examined the record to determine whether

there are any non-frivolous issues that were preserved in the trial court which might

2 support this appeal but, like counsel, we have found no such issues. See Penson v. Ohio,

488 U.S. 75, 80, 109 S. Ct. 346, 102 L. Ed. 2d 300 (1988); In re Schulman, 252 S.W.3d

at 409; Gainous v. State, 436 S.W.2d 137, 138 (Tex. Crim. App. 1969).

After carefully reviewing the appellate record, counsel’s brief, and appellant’s pro

se response, we conclude that there are no plausible grounds for appellate review. We

therefore affirm the trial court’s judgment and grant counsel’s motion to withdraw.2 See

TEX. R. APP. P. 43.2(a).

Judy C. Parker Justice

Do not publish.

2 Even though appellant was informed of his right to file a pro se petition for discretionary review upon execution of the Trial Court’s Certification of Defendant’s Right of Appeal, counsel must comply with Rule 48.4 of the Texas Rules of Appellate Procedure, which provides that counsel shall, within five days after this opinion is handed down, send appellant a copy of the opinion and judgment together with notification of his right to file a pro se petition for discretionary review. In re Schulman, 252 S.W.3d at 408 n.22 & 411 n.35. This duty is an informational one, not a representational one. It is ministerial in nature, does not involve legal advice, and exists after the court of appeals has granted counsel’s motion to withdraw. Id. at 411 n.33.