Manuel Alcoser, Jr. v. State

• Court: Court of Appeals of Texas
• Decided: February 26, 2015
• Docket: 01-14-00548-CR
• Status: Published

Opinion

Opinion issued February 26, 2015

In The Court of Appeals For The First District of Texas

NO. 01-14-00548-CR ____________

MANUEL ALCOSER, JR., Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 437th District Court Bexar County, Texas Trial Court Cause No. 2011-CR-5943

MEMORANDUM OPINION

Appellant, Manuel Alcoser, Jr., pled guilty to the offense of robbery with an

agreed recommendation as to punishment. The agreement involved a sentence of

five years’ community supervision. The State later moved for adjudication, alleging

multiple violations of the terms of appellant’s community supervision. The State alleged Alcoser (1) used an illegal substance (marijuana), consumed alcoholic

beverages, and failed to submit to urinalysis testing on several occasions; (2) failed

to pay fines; (3) failed to complete 160 hours of community service; (4) failed to

report to his supervision officer for the months of August and September 2013; (5)

committed the offense of evading arrest; and (6) committed the offense of assault.

Appellant pled true to the alleged violations of possession of marijuana and

committing the offenses of evading arrest and assault, and the State waived the

remaining violations. Appellant here appeals from the trial court’s judgment

revoking appellant’s community supervision.

Appellant’s appointed counsel on appeal has filed a motion to withdraw,

along with an Anders brief stating that the record presents no reversible error and

therefore the appeal is without merit and is frivolous. See Anders v. California, 386

U.S. 738, 87 S. Ct. 1396 (1967).

Counsel’s brief meets the Anders requirements by presenting a professional

evaluation of the record and supplying us with references to the record and legal

authority. See Anders, 386 U.S. at 744, 87 S. Ct. at 1400; see also High v. State,

573 S.W.2d 807, 812–13 (Tex. Crim. App. 1978). Counsel indicates that he has

thoroughly reviewed the record and that he is unable to advance any grounds of

2 error that warrant reversal. See Anders, 386 U.S. at 744, 87 S. Ct. at 1400; Mitchell

v. State, 193 S.W.3d 153, 155 (Tex. App.—Houston [1st Dist.] 2006, no pet.).

Counsel has informed us that he has delivered a copy of the brief to appellant

and informed him of his right to examine the appellate record and to file a response.

See In re Schulman, 252 S.W.3d 403, 408 (Tex. Crim. App. 2008). Appellant has

not filed a response.

We have independently reviewed the entire record in this appeal, and we

conclude that no reversible error exists in the record, there are no arguable grounds

for review, and therefore the appeal is frivolous. See Anders, 386 U.S. at 744, 87 S.

Ct. at 1400 (emphasizing that reviewing court—and not counsel—determines, after

full examination of proceedings, whether appeal is wholly frivolous); Garner v.

State, 300 S.W.3d 763, 767 (Tex. Crim. App. 2009) (explaining that frivolity is

determined by considering whether there are “arguable grounds” for review);

Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim. App. 2005) (reviewing court

must determine whether arguable grounds for review exist); Mitchell, 193 S.W.3d

at 155 (reviewing court determines whether arguable grounds exist by reviewing

entire record). An appellant may challenge a holding that there are no arguable

grounds for appeal by filing a petition for discretionary review in the Texas Court

of Criminal Appeals. See Bledsoe, 178 S.W.3d at 827 & n.6.

3 We note that the judgment includes attorney fees. There is no evidence in the

record to indicate Alcoser’s financial circumstances materially changed after the

trial court initially found him to be indigent and appointed counsel to represent him.

We conclude that the evidence is insufficient to support the order requiring

appellant to pay attorney fees for his court-appointed defense counsel. See Jones v.

State, 428 S.W.3d 163, 171–2 (Tex. App.—Houston [1st Dist.] 2014, no pet.).

Therefore, we modify the judgment to remove the portion stating “plus attorney

fees.”

We affirm the judgment of the trial court as modified and grant counsel’s

motion to withdraw.1 Attorney Michael Robbins must immediately send the notice

required by Texas Rule of Appellate Procedure 6.5(c) and file a copy of that notice

with the Clerk of this Court. See TEX. R. APP. P. 6.5(c).

PER CURIAM

Panel consists of Chief Justice Radack and Justices Brown and Lloyd.

Do not publish. TEX. R. APP. P. 47.2(b).

1 Appointed counsel still has a duty to inform appellant of the result of this appeal and that he may, on his own, pursue discretionary review in the Texas Court of Criminal Appeals. See Ex Parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997). 4