John O. Roberts v. Sean Leedy

• Court: Court of Appeals of Texas
• Decided: April 14, 2011
• Docket: 13-08-00604-CV
• Status: Published

Opinion

NUMBER 13-09-631-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

JESSE GARZA, Appellant,

v.

THE STATE OF TEXAS, Appellee.

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

MEMORANDUM OPINION Before Justices Garza, Vela, and Perkes Memorandum Opinion by Justice Vela Appellant, Jesse Garza, was charged by indictment with one count of third degree

assault on a public servant. See TEX. PENAL CODE ANN. § 22.01 (a)(1) (Vernon Supp.

2010). A jury found appellant guilty as charged in the indictment and assessed a punishment of five years in prison, plus a $1,000.00 fine. This appeal followed. We

affirm the judgment.

I. ANDERS BRIEF

Pursuant to Anders v. California, 386 U.S. 738, 744 (1967), appellant‟s

court-appointed appellate counsel has filed a brief with this Court stating that, based upon

his review of the record, “there are no grounds of error upon which an appeal can be

predicated” and “the appeal is wholly without merit.” 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 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), appellant‟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

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

served a copy of the brief and counsel‟s motion to withdraw on appellant, and (3) informed

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

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 court 2 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 appellant has not filed a

pro se brief in this matter. 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 have found

nothing that would arguably support an appeal. See Bledsoe v. State, 178 S.W.3d 824,

826-28 (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. Accordingly, we affirm the

judgment of the trial court.

III. MOTION TO WITHDRAW

In accordance with Anders, appellant‟s attorney 2 has asked this Court for

permission to withdraw as counsel for appellant. 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.) (“If an attorney believes the appeal is frivolous, he must

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

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.)). 2 At the inception of this appeal, appellant was represented by the Honorable Rick Holstein. After Holstein filed a motion to withdraw as appellant‟s counsel, appellant filed a motion for extension of time to file a pro se brief, which was granted on February 10, 2011, and allowed appellant thirty days in which to file a brief. To date, no brief has been filed. 3 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 the 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 appellant and to advise appellant 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 412 n.35; Ex parte Owens, 206 S.W.3d 670, 673 (Tex. Crim. App. 2006).

ROSE VELA Justice

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

Delivered and filed the 14th day of April, 2011.

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 that was overruled by this court. See TEX. R. APP. P. 68.2. Any petition for discretionary review must be filed with this court, after which it will be forwarded to the Texas Court of Criminal Appeals. See id. R. 68.3; 68.7. 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.