Manuel Tunchez v. Fins Grill, Ltd.

• Court: Court of Appeals of Texas
• Decided: July 28, 2011
• Docket: 13-10-00355-CV
• Status: Published

Opinion

NUMBER 13-10-00243-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

MARION VASQUEZ, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from County Court at Law No. 3 of Nueces County, Texas.

MEMORANDUM OPINION Before Justices Benavides, Vela, and Perkes Memorandum Opinion by Justice Perkes Appellant, Marion Vasquez, appeals her conviction for driving while intoxicated, a

Class B misdemeanor. See TEX. PENAL CODE ANN. § 49.04(a) (West 2003). A jury

found appellant guilty and the trial court sentenced appellant to ninety days of

confinement in the Nueces County Jail and imposed a $700 fine, plus court costs. The

trial court suspended imposition of the jail sentence and placed appellant on community supervision for a term of twelve months. Appellant timely perfected this appeal and as

discussed below, her court-appointed counsel filed an Anders brief. We affirm.

I. ANDERS BRIEF

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

court-appointed appellate counsel filed a brief and a motion to withdraw with this Court,

stating that her review of the record yielded no grounds of 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).

In compliance with High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel

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

are no reversible errors in the trial court‘s judgment. Counsel has informed this Court

that she 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 her right to review the record and to file a pro se response.1

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 which 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) (quoting Wilson v. State, 955 S.W.2d 693, 696–97 (Tex. App.—Waco 1997, no pet.)). 2 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 period of time has passed and

appellant has not filed a pro se response. See In re Schulman, 252 S.W.3d at 409.

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 and counsel‘s brief, and 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.‖); Stafford, 813 S.W.2d at 509. There is no reversible error in

the record. Accordingly, the judgment of the trial court is affirmed.

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. Within five days of the date of this Court‘s opinion, counsel is

ordered to send a copy of this opinion and this Court‘s judgment to appellant and to 3 advise her of her 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).

Gregory T. Perkes Justice

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

Delivered and filed the 28th day of July, 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, she 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 Texas Rule of Appellate Procedure 68.4. See TEX. R. APP. P. 68.4. 4