Joe Cecilio Villarreal Jr. v. Thes State of Texas

• Court: Court of Appeals of Texas
• Decided: July 12, 2012
• Docket: 13-11-00370-CR
• Status: Published

Opinion

NUMBER 13-11-00285-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

ROLAND JAY FAUST, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 377th District Court of Victoria County, Texas.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Garza and Vela Memorandum Opinion by Chief Justice Valdez Appellant, Roland Jay Faust, pleaded guilty to the offense of unlawful delivery of

a controlled substance, a state jail felony. See TEX. HEALTH & SAFETY CODE ANN. §

481.112(a) (West 2010). Pursuant to a plea agreement, the trial court deferred

adjudication and placed Faust on community supervision for a term of four years and

assessed a $1,000 fine. The State then filed a motion to revoke Faust’s deferred adjudication community

supervision alleging that he had violated eight terms of his community supervision.

After hearing evidence, the trial court found that Faust had violated five terms of his

community supervision, revoked his community supervision, found him guilty of the

offense of unlawful delivery of a controlled substance, and sentenced him to two years’

confinement in the state jail. The trial court certified Faust’s right to appeal, and this

appeal followed. We affirm.

I. ANDERS BRIEF

Pursuant to Anders v. California, 386 U.S. 738, 744 (1967), Faust’s appellate

counsel has filed a brief with this Court stating that after diligently reviewing the record

and researching the law, he has found no reversible error committed by the trial court

and no arguable grounds of error upon which an appeal can be predicated. Although

counsel’s brief does not advance any arguable grounds of error, it does present a

professional evaluation of the record demonstrating why there are no arguable grounds

to be advanced. See In re Schulman, 252 S.W.3d 403, 407 n.9 (Tex. Crim. App. 2008)

(AIn 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), Faust’s counsel has carefully discussed why, under controlling authority,

there are no errors in the trial court’s judgment. Counsel has informed this Court that he

2 has: (1) examined the record and found no arguable grounds to advance on appeal; (2)

served copies of the brief and counsel’s motion to withdraw on Faust; and (3) informed

Faust of his right to review the record and to file a pro se response. 1 See Anders, 386

U.S. at 744; Stafford, 813 S.W.2d at 510 n.3; see also In re Schulman, 252 S.W.3d at

409 n.23. More than an adequate period of time has passed, and Faust has not filed a

pro se response. See In re Schulman, 252 S.W.3d at 409.

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 we

have found nothing that would arguably support an appeal. See Bledsoe v. State, 178

S.W.3d 824, 826–28 (Tex. Crim. App. 2005) (ADue 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. Accordingly,

we affirm the judgment of the trial court.

III. MOTION TO WITHDRAW

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

to withdraw as counsel. See Anders, 386 U.S. at 744; see also 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.) (AIf an attorney believes the appeal is frivolous, he must withdraw from 1 The Texas Court of Criminal Appeals has held that Athe pro se response need not comply with the rules of appellate procedure in order to be considered. Rather, the response should identify for the 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 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

the opinion and judgment to Faust and 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).

___________________ ROGELIO VALDEZ Chief Justice

Do not Publish. TEX. R. APP. P. 47.2(b) Delivered and filed the 12th day of July, 2012.

2 No substitute counsel will be appointed. Should Faust 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 is overruled by this Court. See TEX. R. APP. P. 68.2. Effective September 1, 2011, any petition for discretionary review must be filed with the clerk of the Texas Court of Criminal Appeals. See id. R. 68.3. Any petition for discretionary review should comply with the requirements of Rule 68.4 of the Texas Rules of Appellate Procedure. See id. R. 68.4.