Jose Luis Aguilar v. State

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-14-00217-CR

JOSE AGUILAR, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 242nd District Court Hale County, Texas Trial Court No. B11064-9205, Honorable Edward Lee Self, Presiding

January 13, 2015

MEMORANDUM OPINION Before CAMPBELL and HANCOCK and PIRTLE, JJ.

Appellant Jose Aguilar was convicted of the 1992 first degree felony offense of

murder1 and sentenced by jury to twenty-eight years of imprisonment. His court-

appointed appellate counsel has filed a motion to withdraw supported by an Anders2

brief. We will grant counsel's motion to withdraw and affirm the judgment of the trial

court.

1 Tex. Penal Code Ann. § 19.02 (West 2012). 2 Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); see Kelly v. State, 436 S.W.3d 313 (Tex. Crim. App. 2014); In re Schulman, 252 S.W.3d 403 (Tex. Crim. App. 2008) (orig. proceeding). Appellant took the stand at his May 2014 trial for the murder of Guadalupe Fraire

in May 1992. He testified that he “grabbed a gun from [his] pickup” and shot Fraire

when the victim approached him after an argument at a rodeo in Plainview. He said

Fraire’s verbal threats to “get him” placed him in fear. The court’s charge authorized the

jury to find appellant not guilty, guilty of murder or, alternatively, guilty of manslaughter.

Evidence showed appellant lived and raised a family in Colorado under an

assumed name after he initially fled to Mexico after the shooting. His three adult

children testified on his behalf during the punishment phase.

Appellant's counsel on appeal expresses his opinion in the Anders brief that

nothing in the record establishes reversible error and the appeal is frivolous. The brief

discusses the sufficiency of the indictment, the pre-trial rulings, adverse rulings at trial,

the evidence presented at trial and its sufficiency, the punishment phase, and

assistance of appellant’s retained trial counsel. Counsel concludes no error occurred.

Correspondence from counsel to appellant indicates counsel supplied appellant a copy

of the Anders brief, counsel's motion to withdraw, and a copy of the entire appellate

record. The correspondence also points out the right of appellant to review the record

and file a pro se response and his right to file a pro se petition for discretionary review in

the Court of Criminal Appeals should he receive an adverse decision by this Court. By

letter, this Court also notified appellant of his opportunity to submit a response to the

Anders brief and motion to withdraw filed by his counsel. Appellant has filed a response

arguing: (1) his confession to police and at trial was coerced by his attorney, (2) his

retained trial counsel provided him ineffective assistance; and (3) there were harmful

evidentiary errors at trial.

2 In conformity with the standards set out by the United States Supreme Court, we

will not rule on the motion to withdraw until we have independently examined the record.

Nichols v. State, 954 S.W.2d 83, 86 (Tex. App.—San Antonio 1997, no pet.). If this

Court determines the appeal arguably has merit, we will remand it to the trial court for

appointment of new counsel. Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App.

1991).

We also have reviewed the entire record to determine whether there are any

arguable grounds which might support an appeal. See Penson v. Ohio, 488 U.S. 75,

109 S.Ct. 346, 102 L.Ed.2d 300 (1988); Bledsoe v. State, 178 S.W.3d 824 (Tex. Crim.

App. 2005). We have found no such arguable grounds supporting a claim of reversible

error, and agree with counsel that the appeal is frivolous.

The motion of counsel to withdraw is granted and the judgment of the trial court

is affirmed.3 TEX. R. APP. P. 43.2(b).

James T. Campbell Justice

Do not publish.

3 Counsel shall, within five days after the opinion is handed down, send his client a copy of the opinion and judgment, along with notification of the defendant's right to file a pro se petition for discretionary review. TEX. R. APP. P. 48.4.