Juan Francisco Villarreal v. State

• Court: Court of Appeals of Texas
• Decided: March 17, 2011
• Docket: 13-10-00204-CR
• Status: Published

Opinion

NUMBERS 13-10-203-CR and 13-10-204-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

JUAN FRANCISCO VILLARREAL, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 93rd District Court of Hidalgo County, Texas.

MEMORANDUM OPINION Before Justices Garza, Vela, and Perkes Memorandum Opinion by Justice Vela Appellant, Juan Francisco Villarreal, appeals from convictions after he pleaded

guilty to two counts of driving while intoxicated, a third degree felony due to prior

convictions, and was sentenced to six years in the Institutional Division of Texas

Department of Criminal Justice on each count, to run concurrently. See TEX. PENAL

CODE ANN. § 49.09(b) (Vernon Supp. 2010). He was also sentenced to 180 days‟ confinement on the charge of evading arrest or detention, to run concurrently. See id. §

38.04(b)(1) (B) (Vernon Supp. 2010). Without a plea bargain, appellant pleaded guilty to

the two felony counts and the state jail felony. The State introduced the plea documents

and the offense report for each case. Appellant stipulated to venue and jurisdiction and

the fact that he was the same person who had previously been indicted for driving while

intoxicated as alleged.

Concluding that there are no arguable issues for this Court to review, appellant‟s

court appointed counsel has filed an Anders brief in which he reviewed the merits, or lack

thereof, of the appeals. We affirm the trial court‟s judgments.

I. COMPLIANCE WITH ANDERS

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

court-appointed appellate counsel has filed a brief in this case, stating that he could find

no meritorious issues to bring forward for review. Counsel's brief discusses relevant

portions of the record and the applicable law. See In re Schulman, 252 S.W.3d 403, 407

n. 9 (Tex. Crim. App. 2008) (orig. proceeding) (“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) (en

banc).

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,

2 there is no error in the trial court's judgments. Counsel certified to this Court that he

forwarded a copy of his motion to withdraw and its supporting brief to appellant with a

letter advising him 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. More than an adequate time has passed, and appellant has not

filed a pro se response.

II. INDEPENDENT REVIEW

Upon receiving an Anders brief, this Court must conduct a full examination of all

the proceedings to determine whether the cases are wholly frivolous. Penson v. Ohio,

488 U.S. 75, 800 (1988). We have reviewed the entire record in these cases and

counsel's brief, and we 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 judgments of the trial court.

III. 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 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 that 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) (orig. proceeding) (quoting Wilson v. State, 955 S.W.2d 693, 696-67 (Tex. App.–Waco 1997, no pet.)).

3 (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

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 the judgments to appellant and to advise

appellant of his right to file a petition for discretionary review.2 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 17th day of March, 2011.

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 rule 68.4 of the Texas Rules of Appellate Procedure. See TEX. R. APP. P. 68.4. 4