Juan Carlos Cantu v. State

Opinion

                             NUMBER 13-05-644-CR

                         COURT OF APPEALS

               THIRTEENTH DISTRICT OF TEXAS

                  CORPUS CHRISTI - EDINBURG

JUAN CARLOS CANTU,                                            Appellant,

                                           v.

THE STATE OF TEXAS,                                              Appellee.

                  On appeal from the 105th District Court

                           of Kleberg County, Texas.

                     MEMORANDUM OPINION

        Before Chief Justice Valdez and Justices Rodriguez and Castillo

                        Memorandum Opinion by Justice Castillo

Appellant, Juan Carlos Cantu, pleaded guilty to burglary of a habitation.^[1]  The trial court accepted the guilty plea and deferred adjudication, placing Cantu on community supervision for a term of eight years.  During the term of the deferred adjudication, the State filed a motion to revoke community supervision and adjudicate guilt.  After an evidentiary hearing, the trial court withdrew its order deferring adjudication, and entered a judgment of conviction.  Cantu was sentenced to a term of ten years confinement with an intermediate stay at boot camp, and assessed a $5,000.00 fine.  Thereafter, but within 180 days of sentencing, the trial court suspended Cantu's sentence by granting shock probation under article 42.12, section 8 of the Texas Code of Criminal Procedure.  Tex. Code Crim. Proc. Ann. art. 42.12 _ 8 (Vernon 1979).  However, the State again filed a motion to revoke community supervision, setting forth twelve counts of Cantu's alleged violations.  Cantu pleaded true to eleven of the twelve counts.  The trial court found (1) Cantu had violated the conditions of this community supervision, and (2) revoked community supervision, assessing punishment at ten years' imprisonment and a $5,000.00 fine.  The trial court certified that this is not a plea-bargain case and that Cantu has the right to appeal.  See Tex. R. App. P. 25.2(a)(2).  Cantu appealed and his court-appointed counsel filed an Anders brief.  See Anders v. California, 386 U.S. 738, 744-45 (1967).  We affirm. 

I.  Analysis

A.  Anders

Anders addresses the extent of the duty of a court‑appointed appellate counsel to prosecute a first appeal from a criminal conviction, after that attorney has conscientiously determined that there is no merit to the indigent's appeal.  Anders,  386 U.S. at 739.^[2]  If counsel finds the case to be wholly frivolous, after a conscientious examination of it, he should so advise the appellate court and request permission to withdraw.  Id. at 744.  That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal.  Id.  A copy of counsel's brief should be furnished to the indigent and time allowed him to raise any points that he chooses; the courtBnot counselBthen proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous.  Id.        If the court agrees, it may grant counsel's request to withdraw and dismiss the appeal or proceed to a decision on the merits.  Id.  On the other hand, if the appellate court finds any of the legal points arguable on their merits (and therefore not frivolous), it must afford appellant the assistance of counsel to argue the appeal.  Id.  Accordingly, we must, "after a full examination of all the proceedings . . . decide whether the case is wholly frivolous."  Id. at 744; see Penson v. Ohio, 488 U.S. 75, 80 (1988); accord Stafford v. State, 813 S.W.2d 503, 509‑11 (Tex. Crim. App. 1991).  An appeal is "wholly frivolous" or "without merit" when it "lacks any basis in law or fact."  McCoy v. Court of Appeals, 486 U.S. 429, 439 n.10 (1988).  An appeal is not wholly frivolous when it is based on "arguable grounds." Stafford, 813 S.W.2d at 511.

B.  Anders Brief  

Court-appointed counsel has filed a brief asserting that (1) he has diligently reviewed the entire record and applicable law, and (2) in his professional opinion, the appeal is without merit and is frivolous because the record reflects no reversible error and there are no grounds upon which an appeal can be predicated in compliance with Anders.  See High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. 1978).  Counsel provides discussion and an analysis of Cantu's right to appeal under rule 25.2 of the rules of appellate procedure.  See Tex. R. App. P. 25.2(a)(2).  Counsel indicates that the only matter upon which Cantu may rely as a basis for appeal is count eight of the motion to revoke community supervision which is subject of this appeal.^[3]  However, he finds no grounds for appeal.

Counsel has provided a copy of a letter to Cantu in which he apprised Cantu that (1) counsel filed an Anders brief, (2) Cantu has the right to review the appellate record and file a brief, and (3) counsel provided Cantu with a copy of the record.  Cantu has not filed a pro se brief on his own behalf, and the deadline for filing a pro se brief has expired.  See McMahon v. State, 529 S.W.2d 771, 772 (Tex. Crim. App. 1975).

C.  Discussion

In the appellate brief, counsel reviews the following:  (1) the original plea and deferred adjudication; (2) the plea proceeding including the plea and admonishment; (3) the sufficiency of the evidence; (4) the sentencing proceedings, including Cantu's testimony admitting guilt;^[4] (5) the legality of the sentence;^[5] (6) the first and subsequent motions to revoke community supervision, and the trial court's imposition of sanctions without adjudicating guilt or revoking Cantu's community supervision as to the prior motions; (7) the amended motion to revoke;^[6] including the evidentiary hearing and the trial court's withdrawal of its order deferring adjudication and entering a judgment of conviction as well as the punishment phase of the hearing, wherein the trial court sentenced Cantu to a term of ten years' confinement with an intermediate stay at boot camp, as well as a $5,000.00 fine; (8) the suspension of Cantu's sentence within 180 days of sentencing, and granting of shock probation; (9) the State's motion to revoke community supervision which is subject of this appeal; and evidentiary hearing; and (10) objections and preservation of error.  Guided by court-appointed counsel's advocacy in the appellate brief, see Anders, 386 U.S. at 745, our independent review of the appellate record, see Penson, 488 U.S. at 80, and law applicable to the charged offenses, we conclude that the appeal is wholly frivolous.  See Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005); McCoy, 486 U.S. at 439 n.10.

II.  Disposition

Because we conclude that the appeal is wholly frivolous, we affirm.  Bledsoe, 178 S.W.3d at 828.

Counsel in this case has requested to withdraw from further representation of

Cantu on appeal.  An appellate court may grant counsel's motion to withdraw filed in connection with an Anders brief.  Moore v. State, 466 S.W.2d 289, 291 n.1 (Tex. Crim. App. 1971); see Stafford, 813 S.W.2d at 511 (noting that an Anders brief should be filed with request for withdrawal from case).  We hereby order counsel to advise Cantu of the disposition of this case and the availability of discretionary review.  See Ex parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997) (per curiam).  We grant counsel's motion to withdraw as court‑appointed counsel on appeal.   

ERRLINDA CASTILLO

Justice

Do not publish.

Tex. R. App. P.47.2(b).

Memorandum Opinion delivered and filed

this the 1st  day of June,  2006.                                              

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^[1] Tex. Pen. Code Ann. _ 30.02(a)(3) (Vernon 1999).

^[2] The requirements of Anders are met in the event appointed counsel thoroughly studies the record, consults with the defendant and trial counsel and conscientiously concludes, and so advises the appellate court, that there are no meritorious grounds of appeal (provided the appellate court is satisfied from its own review of the record, and in light of any points personally raised by the defendant, that appointed counsel's conclusion is correct).  See Anders v. California, 386 U.S. 738, 741 (1967). 

^[3] Count eight of the motion to revoke community supervision alleged that the defendant associated with felons, marijuana users or those likely to commit a crime in violation of condition 0-1 of his community supervision.  However, in response to a two-part question by the trial court at the time of the hearing on the revocation of the community supervision, Cantu admitted that he had associated with felons and marijuana users. 

^[4] The evidence was sufficient to sustain the conviction because the plea of guilty, in and of itself, satisfies the constitutional requirement that the State prove guilt beyond a reasonable doubt.  Tex. Code Crim. Proc. Ann. art. 1.15 (Vernon 2005).

^[5] The sentence imposed was within the authorized range of punishment for burglary of a habitation.  Tex. Pen. Code Ann. _ 12.33 (Vernon 2003).

^[6] It is noted that although counsel mentions an original and then third amended motion to revoke community supervision in the Anders brief, the clerk's record evidences numerous motions which were filed because Cantu allegedly refused to comply with the requirements of continued community supervision.