Juan Lerma Jr. v. State

• Court: Court of Appeals of Texas
• Decided: October 3, 2013
• Docket: 13-13-00122-CR
• Status: Published

Opinion

NUMBER 13-13-00122-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

JUAN LERMA JR., Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 105th District Court of Kleberg County, Texas.

MEMORANDUM OPINION Before Justices Benavides, Perkes, and Longoria Memorandum Opinion by Justice Longoria

Appellant, Juan Lerma Jr., was indicted for the offense of aggravated assault

causing serious bodily injury, a second-degree felony. See TEX. PENAL CODE ANN.

§ 22.02(a) (West 2011). The State also sought an affirmative finding that appellant

used or exhibited a deadly weapon in the commission of the offense. See id. § 1.07(11)

(West. Supp. 2011). Appellant pleaded guilty. The trial court accepted the plea and placed appellant on deferred-adjudication community supervision for a term of ten

years.

In November of 2012, the State filed its second motion to revoke and adjudicate

guilt, alleging five violations of the terms of appellant’s supervision. At the revocation

hearing, the State abandoned the second ground, and appellant pleaded “true” to the

remaining grounds.1 The trial court revoked appellant’s supervision, adjudicated him

guilty of the original offense, and assessed a sentence of imprisonment for eight years

in the Texas Department of Criminal Justice—Institutional Division. This appeal

followed.

I. ANDERS BRIEF

Appellant’s court-appointed appellant counsel has filed a brief and motion to

withdraw with this Court pursuant to Anders v. California, 386 U.S. 738, 744 (1967),

stating that his review of the record yielded no grounds of error upon which to base an

appeal. 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, 406 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 The State alleged by the remaining grounds that appellant: failed to report to his parole officer for a period of several months; failed to complete the full term of community service imposed in the original judgment; failed to timely report an arrest for public intoxication; and had a urinalysis test that was positive for marijuana. 2 In compliance with High v. State, 507 S.W.2d 807, 813 (Tex. Crim. App. [Panel

Op.] 1978), appellant’s counsel carefully discussed why, under controlling authority,

there is no reversible error 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.

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 a sufficient time has passed, and appellant has not

responded by filing a pro se response.

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, including appellant’s initial

guilty plea, the transcript of the revocation hearing, the trial court’s written

admonishments that were signed by appellant, the judgment of the trial court, and

counsel’s brief, and we have found nothing that would arguably support an appeal. See

Bledsoe v. State, 178 S.W.3d 824, 827–28 (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.”). We agree that there

is no reversible error. Accordingly, the judgment of the trial court is affirmed.

3 III. MOTION TO WITHDRAW

In accordance with Anders, appellant’s attorney 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.) (“[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. Counsel is ordered to send a copy of this opinion and this Court’s

judgment to appellant within five days of the date of this Court’s opinion, and to advise

him of his right to file a petition for discretionary review with the court of criminal

appeals.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).

______________________ NORA L. LONGORIA Justice Do not publish. TEX. R. APP. P. 47.2(b).

Delivered and filed the 3rd day of October, 2013.

2 No substitute counsel will be appointed. Should Lerma 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 or timely motion for en banc reconsideration that was overruled by this Court. See TEX. R. APP. P. 68.2. Any petition for discretionary review must be filed with the clerk of the Court of Criminal Appeals. See id. R. 68.3. Any petition for discretion review should comply with the requirements of Texas Rule of Appellate Procedure 68.4. Id. R. 68.4.