Jhony Virreira v. State

Opinion

Opinion issued April 18, 2019

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-18-00826-CR ——————————— JHONY VIRREIRA, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the County Criminal Court at Law No. 16 Harris County, Texas Trial Court Case No. 2154070

MEMORANDUM OPINION A jury found appellant, Jhony Virreira, guilty of the misdemeanor offense of

assault of a family member.1 The trial court assessed appellant’s punishment at

confinement for one year, suspended the sentence, and placed him on community

supervision for two years. The trial court certified that this case is not a plea-bargain

case and appellant has the right to appeal. Appellant timely filed a notice of appeal.

Appellant’s appointed counsel on appeal has filed a motion to withdraw, along

with a brief stating that the record presents no reversible error and the appeal is

without merit and is frivolous. See Anders v. California, 386 U.S. 738 (1967).

Counsel’s brief meets the Anders requirements by presenting a professional

evaluation of the record and supplying us with references to the record and legal

authority. Id. at 744; see also High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App.

1978). Counsel indicates that he has thoroughly reviewed the record and is unable

to advance any grounds of error that warrant reversal. See Anders, 386 U.S. at 744;

Mitchell v. State, 193 S.W.3d 153, 155 (Tex. App.—Houston [1st Dist.] 2006, no

pet.).

Counsel has informed the Court that he delivered to appellant a copy of the

brief, the clerk’s record, the reporter’s record, the supplemental reporter’s record,

and a form motion to access the record, and counsel informed appellant of his right

1 See TEX. PENAL CODE ANN. § 22.01(a)(1), (b); see also TEX. CODE CRIM. PROC. ANN. art. 42.013; TEX. FAM. CODE ANN. § 71.004.

2 to file a response. See Kelly v. State, 436 S.W.3d 313, 319 (Tex. Crim. App. 2014)

(citations omitted); In re Schulman, 252 S.W.3d 403, 408 (Tex. Crim. App. 2008).

Appellant has not filed a response to his counsel’s Anders brief.

We have independently reviewed the entire record in this appeal, and conclude

that no reversible error exists in the record, there are no arguable grounds for review,

and the appeal is frivolous. See Anders, 386 U.S. at 744 (emphasizing that reviewing

court—and not counsel—determines, after full examination of proceedings, whether

appeal is wholly frivolous); Garner v. State, 300 S.W.3d 763, 767 (Tex. Crim. App.

2009) (reviewing court must determine whether arguable grounds for review exist);

Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim. App. 2005) (same); Mitchell,

193 S.W.3d at 155 (reviewing court determines whether arguable grounds exist by

reviewing entire record). We note that appellant may challenge a holding that there

are no arguable grounds for appeal by filing a petition for discretionary review in the

Texas Court of Criminal Appeals. See Bledsoe, 178 S.W.3d at 827 & n.6.

We affirm the judgment of the trial court and grant counsel’s motion to

withdraw.2 Attorney Nicholas Mensch must immediately send appellant the

required notice and file a copy of the notice with the Clerk of this Court. See TEX.

R. APP. P. 6.5(c).

2 Appointed counsel still has a duty to inform appellant of the result of this appeal and that he may, on his own, pursue discretionary review in the Texas Court of Criminal Appeals. See Ex Parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997).

3 PER CURIAM

Panel consists of Chief Justice Radack and Justices Goodman and Countiss. Do not publish. TEX. R. APP. P. 47.2(b).