John Gutierrez v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: January 19, 2023
• Docket: 13-22-00394-CR
• Status: Published

Opinion

NUMBER 13-22-00394-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

JOHN GUTIERREZ, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 319th District Court of Nueces County, Texas.

MEMORANDUM OPINION

Before Justices Benavides, Tijerina, and Peña Memorandum Opinion by Justice Benavides

Pursuant to a plea bargain agreement, appellant John Gutierrez pleaded guilty to

the offense of indecency with a child by exposure, a third-degree felony, and the trial court

placed him on deferred adjudication community supervision for a period of five years. 1

1 Appellant was also indicted on one count of continuous sexual abuse of a child, a first-degree See TEX. PENAL CODE ANN. § 21.11(a)(2). On the State’s motion, the trial court later

revoked appellant’s supervision, adjudicated him guilty, and sentenced him to seven

years’ imprisonment.2 See id. § 12.34(a). Although appellant filed a notice of appeal, his

court-appointed counsel has filed an Anders brief stating that there are no arguable

grounds for appeal. See Anders v. California, 386 U.S. 738, 744 (1967). We affirm the

trial court’s judgment.

I. ANDERS BRIEF

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

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

yielded no grounds of reversible error upon which an appeal could 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, 406 n.9 (Tex. Crim. App. 2008) (orig. proceeding) (“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–Edinburg 2003, no pet.))); Stafford v. State, 813 S.W.2d 503, 510

felony. See TEX. PENAL CODE ANN. § 21.02. This charge was dismissed as part of the plea agreement. 2 This was the State’s second motion to revoke appellant’s supervision. Appellant pleaded “true” to the allegations in the first motion, and the trial court (1) sanctioned appellant by imposing a sixty-day jail sentence, and (2) continued him on supervision with additional conditions, including zero tolerance and GPS monitoring. The State’s second motion, filed approximately two months after appellant was released from jail, alleged twenty-two new violations, including that appellant had prohibited contact with his girlfriend’s minor children. Appellant pleaded “true” to three of the violations, and after a contested hearing, the trial court found all but one of the other allegations to be true, including the allegation involving prohibited contact. 2 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, 319–22 (Tex. Crim. App. 2014),

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

reversible error in the trial court’s judgment. Appellant’s counsel also informed this Court

in writing that he: (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 his rights to file pro se responses, to review the record prior to filing those responses,

and to seek discretionary review if we conclude that the appeal is frivolous; and

(4) provided appellant with a form motion for pro se access to the appellate record that

only requires appellant’s signature and date with instructions to file the motion within ten

days. See Anders, 386 U.S. at 744; Kelly, 436 S.W.3d at 319–20; see also In re

Schulman, 252 S.W.3d at 408–09. In this case, appellant filed neither a timely motion

seeking pro se access to the appellate record nor a motion for extension of time to do so.

Appellant did not file a pro se response.

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 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,

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

3 reversible error but found none, the court of appeals met the requirements of Texas Rule

of Appellate Procedure 47.1.”); Stafford, 813 S.W.2d at 511.

III. MOTION TO WITHDRAW

In accordance with Anders, appellant’s counsel 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. We grant counsel’s motion to withdraw. Within five

days from 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.3 See TEX. R. APP. P. 48.4; see also In re Schulman, 252 S.W.3d at

411 n.35; Ex parte Owens, 206 S.W.3d 670, 673 (Tex. Crim. App. 2006).

IV. CONCLUSION

We affirm the trial court’s judgment.

GINA M. BENAVIDES Justice

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

Delivered and filed on the 19th day of January, 2023.

3 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 Texas 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