Jesus Miguel Villarreal v. State

• Court: Court of Appeals of Texas
• Decided: June 28, 2018
• Docket: 13-17-00253-CR
• Status: Published

Opinion

NUMBER 13-17-00253-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

JESUS MIGUEL VILLARREAL, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 139th District Court of Hidalgo County, Texas.

MEMORANDUM OPINION

Before Justices Contreras, Longoria, and Hinojosa Memorandum Opinion by Justice Hinojosa

Appellant Jesus Miguel Villarreal pleaded guilty to two counts of assault on a public

servant, third-degree felonies, see TEX. PENAL CODE ANN. § 22.01(b)(1) (West, Westlaw

through 2017 1st C.S.), and one count of aggravated robbery, a first-degree felony. See

id. § 29.03 (West, Westlaw through 2017 1st C.S.). After finding appellant guilty, the trial court sentenced appellant to ten years’ imprisonment on each count, to be served

concurrently. Appellant’s court-appointed counsel has filed an Anders brief. See

Anders v. California, 386 U.S. 738, 744 (1967). We affirm.

I. ANDERS BRIEF

Pursuant to Anders v. California, appellant’s court-appointed appellate counsel

has filed a brief and a motion to withdraw with this Court, stating that her review of the

record yielded no grounds of error upon which an appeal can be predicated. See id.

Counsel’s brief meets the requirements of Anders as it presents a professional evaluation

demonstrating why there are no arguable grounds to advance on appeal. See In re

Schulman, 252 S.W.3d 403, 407 n.9 (Tex. Crim. App. 2008) (“In Texas, an Anders brief

need not specifically advance ‘arguable’ points of error if counsel finds none, but it must

provide record references to the facts and procedural history and set out pertinent legal

authorities.”) (citing Hawkins v. State, 112 S.W.3d 340, 343–44 (Tex. App.—Corpus

Christi 2003, no pet.)); Stafford v. State, 813 S.W.2d 503, 510 n.3 (Tex. Crim. App. 1991).

In compliance with High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel

Op.] 1978) and Kelly v. State, 436 S.W.3d 313, 318–19 (Tex. Crim. App. 2014),

appellant’s counsel carefully discussed why, under controlling authority, there is no

reversible error in the trial court's judgment. Counsel has informed this Court, in writing,

that she has: (1) notified appellant that counsel has filed an Anders brief and a motion

to withdraw; (2) provided appellant with copies of both pleadings; (3) informed appellant

of appellant’s rights to file a pro se response, 1 review the record preparatory to filing that

1 The Texas Court of Criminal Appeals has held that “the pro se response need not comply with the rules of appellate procedure in order to be considered. Rather, the response should identify for the 2 response, and seek discretionary review if the court of appeals concludes that the appeal

is frivolous; and (4) provided appellant with a form motion for pro se access to the

appellate record, lacking only appellant’s signature and the date and including the mailing

address for the court of appeals, with instructions to file the motion within ten days. See

Anders, 386 U.S. at 744; Kelly, 436 S.W.3d at 318–19; see also In re Schulman, 252

S.W.3d at 409 n.23. An adequate time has passed, and appellant has not filed a pro se

brief or a motion for pro se access to the appellate record.

II. INDEPENDENT REVIEW

Upon receiving an Anders brief, we must conduct a full examination of all the

proceedings to determine whether the case is wholly frivolous. Penson v. Ohio, 488 U.S.

75, 80 (1988). We have reviewed the entire record and counsel’s brief and found nothing

that would arguably support an appeal. Bledsoe v. State, 178 S.W.3d 824, 827–28 (Tex.

Crim. App. 2005) (“Due to the nature of Anders briefs, by indicating in the opinion that it

considered the issues raised in the briefs and reviewed the record for reversible error but

found none, the court of appeals met the requirement of Texas Rule of Appellate

Procedure 47.1.”); Stafford, 813 S.W.2d at 509. There is no reversible error in the

record. Accordingly, the judgment of the trial court is affirmed.

III. MOTION TO WITHDRAW

In accordance with Anders, appellant’s attorney has asked this Court for

permission to withdraw as counsel for appellant. See Anders, 386 U.S. at 744; see also

court those issues which the indigent appellant believes the court should consider in deciding whether the case presents any meritorious issues.” In re Schulman, 252 S.W.3d 403, 409 n.23 (Tex. Crim. App. 2008) (quoting Wilson v. State, 955 S.W.2d 693, 696–97 (Tex. App.—Waco 1997, no pet.)). 3 In re Schulman, 252 S.W.3d at 408 n.17 (citing Jeffery v. State, 903 S.W.2d 776, 779–80

(Tex. App.—Dallas 1995, no pet.) (“[I]f an attorney believes the appeal is frivolous, he

must withdraw from representing the appellant. To withdraw from representation, the

appointed attorney must file a motion to withdraw accompanied by a brief showing the

appellate court that the appeal is frivolous.”) (citations omitted)). We grant counsel’s

motion to withdraw. Within five days of the date of this Court’s opinion, counsel is

ordered to send a copy of this opinion and this Court’s judgment to appellant and to advise

him of his right to file a petition for discretionary review. 2 See TEX. R. APP. P. 48.4; see

also In re Schulman, 252 S.W.3d at 412 n.35; Ex parte Owens, 206 S.W.3d 670, 673

(Tex. Crim. App. 2006).

LETICIA HINOJOSA Justice

Do not publish. TEX. R. APP. P. 47.2(b).

Delivered and filed the 28th day of June, 2018.

2 No substitute counsel will be appointed. Should appellant wish to seek further review of this case by the Texas Court of Criminal Appeals, he must either retain an attorney to file a petition for discretionary review or file a pro se petition for discretionary review. Any petition for discretionary review must be filed within thirty days from the date of either this opinion or the last timely motion for rehearing or timely motion for en banc reconsideration that was overruled by this Court. See TEX. R. APP. P. 68.2. Any petition for discretionary review must be filed with the clerk of the Court of Criminal Appeals. See id. R. 68.3. Any petition for discretionary review should comply with the requirements of Texas Rule of Appellate Procedure 68.4. See id. R. 68.4. 4