Jose Luis Aguilar v. State

• Court: Court of Appeals of Texas
• Decided: March 31, 2011
• Docket: 13-10-00341-CR
• Status: Published

Opinion

NUMBER 13-10-00341-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

JOSE LUIS AGUILAR, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 36th District Court of San Patricio County, Texas.

MEMORANDUM OPINION Before Chief Justice Valdez and Justices Rodriguez and Perkes Memorandum Opinion by Justice Perkes

Appellant, Jose Luis Aguilar, appeals his conviction for one count of aggravated

sexual assault of a child, a first-degree felony, and one count of indecency with a child, a

second-degree felony. See TEX. PEN. CODE ANN. §§ 22.021, 21.11 (Vernon 2003).

Pursuant to a plea-bargain agreement, appellant pleaded guilty to both counts, and the trial court imposed a $2,500 fine on the aggravated sexual assault of a child count and

sentenced appellant to two concurrent, twenty-year terms of confinement in the Texas

Department of Criminal Justice, Institutional Division. Appellant filed a notice of appeal,

and as discussed below, his court-appointed counsel filed an Anders brief. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

Appellant was reported to law enforcement for molesting a child multiple times.

Shortly after his arrest, appellant gave a voluntary written confession to an investigator

with the San Patricio County Sherriff‟s Department. Appellant moved to suppress his

confession and the trial court denied his motion to suppress. After his motion to

suppress was denied, appellant pleaded guilty as charged pursuant to a plea-bargain

agreement and was convicted.

II. ANDERS BRIEF

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

court-appointed appellate counsel has filed a brief and a motion to withdraw with this

Court, stating that his review of the record yielded no grounds of error upon which an

appeal can be predicated. 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,

2 343-44 (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 reversible 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 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. Appellant has responded by filing a timely pro se brief.

III. INDEPENDENT REVIEW

A court of appeals has two options when an Anders brief and a subsequent pro se

response are filed. After reviewing the entire record, it may: (1) determine that the

appeal is wholly frivolous and issue an opinion explaining that it finds no reversible error;

or (2) determine that there are arguable grounds for appeal and remand the case to the

trial court for appointment of new appellate counsel. Bledsoe v. State, 178 S.W.3d 824,

826-27 (Tex. Crim. App. 2005). If the court finds arguable grounds for appeal, it may not

review those grounds until after new counsel has briefed those issues on appeal. Id.

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.

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 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 75, 80 (1988). We have reviewed the entire record, counsel‟s brief, and appellant‟s pro

se brief and have found nothing that would arguably support an appeal. See Bledsoe,

178 S.W.3d at 827-28 (“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.

IV. 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

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.) (noting that “[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.

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 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 TEX. R. APP. P. 68.3, 68.7. Any petition for discretionary review should comply with the requirements of Texas Rule of Appellate Procedure 68.4. See TEX. R. APP. P. 68.4. 4 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).

______________________ Gregory T. Perkes Justice

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

Delivered and filed the 31st day of March, 2011.