Jose Noe Bahena v. State

Opinion

NUMBER 13-09-00401-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

JOSE NOE BAHENA, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 252nd District Court of Jefferson County, Texas.

MEMORANDUM OPINION

Before Justices Rodriguez, Garza, and Benavides Memorandum Opinion by Justice Garza

Appellant, Jose Noe Bahena, was charged by indictment with unauthorized use of

a motor vehicle, a state-jail felony. See TEX . PENAL CODE ANN . § 31.07 (Vernon 2003).

Pursuant to a plea agreement with the State, Bahena pleaded guilty to the underlying

offense. The trial court accepted Bahena’s plea agreement with the State, deferred

adjudication of the underlying offense, placed Bahena on community supervision for two years, and assessed a $500 fine. In addition, the trial court amended the terms of

Bahena’s community supervision to require Bahena to: (1) complete his G.E.D. within six

months of the community supervision order; (2) participate in forty hours of community

service a week; and (3) serve “180 days upfront in SJ [state jail].”1

Thereafter, the State filed a motion to revoke alleging that Bahena had violated

several conditions of his community supervision. The trial court conducted a hearing on

the State’s motion to revoke on May 26, 2009, at which Bahena pleaded “true” to three of

the four allegations contained in the State’s motion to revoke. The trial court concluded

that the evidence supported the State’s allegations and subsequently revoked Bahena’s

community supervision and sentenced him to two years’ incarceration in the state jail. This

appeal ensued.2 We affirm.

I. ANDERS BRIEF

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

court-appointed appellate counsel has filed a brief with this Court, stating that his review

of the record yielded no grounds or 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, 343-44 (Tex. App.–Corpus Christi

2003, no pet.)); Stafford v. State, 813 S.W.2d 503, 510 n.3 (Tex. Crim. App. 1991). 1 Bahena signed the docum ent reflecting the am endm ents to his com m unity supervision, thereby indicating that he agreed to the changes.

2 This case was transferred to the Thirteenth Court of Appeals pursuant to a docket equalization order issued by the Suprem e Court of Texas. See T EX . G O V ’T C OD E A N N . § 73.001 (Vernon 2005). 2 In compliance with High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel Op.]

1978), Bahena's appellate 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 Bahena, and (3) informed

Bahena of his right to review the record and to file a pro se response.3 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. Bahena filed a pro se response on October 22, 2009.

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, counsel's briefs, and Bahena’s pro se

response 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.

III. MOTION TO WITHDRAW

In accordance with Anders, Bahena’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.) (noting that “[i]f an attorney believes the appeal is frivolous, he must 3 The Texas Court of Crim inal Appeals has held that “the pro se response need not com ply 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 m eritorious issues.” In re Schulman, 252 S.W .3d 403, 409 n.23 (Tex. Crim . App. 2008) (quoting W ilson v. State, 955 S.W .2d 693, 696-97 (Tex. App.–W aco 1997, no pet.)). 3 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

the opinion and judgment to Bahena and to advise Bahena of his right to file a petition for

discretionary review.4 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).

________________________ DORI CONTRERAS GARZA Justice

Do Not Publish. TEX . R. APP. P. 47.2(b) Delivered and filed the 11th day of February, 2010.

4 No substitute counsel will be appointed. Should Bahena wish to seek further review of this case by the Texas Court of Crim inal Appeals, he m ust 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 m ust be filed within thirty days from the date of either this opinion or the last tim ely m otion for rehearing that was overruled by this Court. See T EX . R. A PP . P. 68.2. Any petition for discretionary review m ust be filed with this Court, after which it will be forwarded to the Texas C ourt of C rim inal Appeals. See T EX . R. A PP . P. 68.3; 68.7. Any petition for discretionary review should com ply with the requirem ents of Rule 68.4 of the Texas Rules of Appellate Procedure. See T EX . R. A PP . P. 68.4.