Marcelino Fred Rodriguez v. State

• Court: Court of Appeals of Texas
• Decided: January 19, 2015
• Docket: 08-14-00033-CR
• Status: Published

Opinion

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

§ MARCELINO FRED RODRIGUEZ, No. 08-14-00033-CR § Appellant, Appeal from the § v. 292nd Judicial District Court § THE STATE OF TEXAS, of Dallas County, Texas § Appellee. (TC# F11-59903-V) §

MEMORANDUM OPINION

Marcelino Fred Rodriguez appeals the trial court’s judgment convicting him of unlawful

possession of a firearm by a felon.1 We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

After being indicted for the offense identified above, Rodriguez entered an open plea of

guilty. In conjunction with his open plea, Rodriguez judicially confessed and signed plea

admonishments, which adequately informed him of his rights. In the written admonishments,

Rodriguez waived his rights and acknowledged that his “statements and waivers [were]

knowingly, freely, and voluntarily made with full understanding of the consequences.”

At the plea hearing, the trial court accepted Rodriguez’s plea after ascertaining that he 1 Rodriguez is also appealing the trial court’s judgments in two companion cases tried concurrently with this case. In appellate cause No. 08-14-00032-CR, he appeals his conviction for unlawful possession of a controlled substance. In appellate cause No. 08-14-00046-CR, he appeals his conviction for burglary of a habitation. understood the charge against him. The trial court also took judicial notice of the contents of its

file and admitted into evidence, without objection, the written plea admonishments and certified

copies of five prior convictions. The trial court then heard testimony from Rodriguez, his mother,

and two of his victims. Rodriguez admitted he was pleading guilty, accepted responsibility for

his crime, and requested leniency on the basis that his “actions were not intentional but being

controlled by [his] drug addiction” following his father’s death. After listening to closing

arguments, the trial court found Rodriguez guilty and sentenced him to ten years’ imprisonment.2

See TEX.PENAL CODE ANN. § 46.04 (a), (e)(West 2011)(unlawful possession of a firearm by a

felon is a third-degree felony); TEX.PENAL CODE ANN. § 12.34(a)(West 2011)(range of

punishment for third-degree felony is 2 to 10 years’ imprisonment). When asked by the trial court

if there was any legal reason why Rodriguez’s sentence could not be pronounced then and there,

defense counsel answered in the negative.

ANDERS BRIEF

Rodriguez’s court-appointed appellate counsel has filed an Anders brief.3 See Anders v.

California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); High v. State, 573 S.W.2d 807,

813 (Tex.Crim.App. [panel op.] 1978)(adopting the Anders procedure); see also Stafford v. State,

813 S.W.2d 503, 509-11 (Tex.Crim.App. 1991). In Anders, the United States Supreme Court

recognized that counsel, though appointed to represent the appellant in an appeal from a criminal

conviction, had no duty to pursue a frivolous matter on appeal. Anders, 386 U.S. at 744, 87 S.Ct.

at 1400. Counsel was thus permitted to withdraw after informing the court of his conclusion and

2 This sentence ran concurrent to the sentences imposed in the two companion cases. 3 Counsel was also appointed to represent Rodriguez in the two companion cases identified in footnote number one. In each of those cases, counsel filed an Anders brief as well. 2 the effort made in arriving at that conclusion. Anders, 386 U.S. at 744, 87 S.Ct. at 1400.

In this case, Rodriguez’s counsel has concluded that after a thorough review of the record,

Rodriguez’s appeal is frivolous and without merit. Counsel’s brief meets the requirements of

Anders by presenting a professional evaluation of the record demonstrating why there are no

arguable grounds to be advanced. See Anders, 386 U.S. at 744, 87 S.Ct. at 1400. In accordance

with Anders’s requirements, counsel has moved to withdraw. As required, counsel notified

Rodriguez of the Anders brief and provided him with a copy of it, advised him of his right to

examine the appellate record and file a pro se brief in this Court, and informed this Court, in

writing, that she performed the foregoing requirements. Kelly v. State, 436 S.W.3d 313, 319

(Tex.Crim.App. 2014); In re Schulman, 252 S.W.3d 403, 408 (Tex.Crim.App. 2008). Counsel

also satisfied her obligation to “take concrete measures to initiate and facilitate the process of

actuating [her] client’s right to review the appellate record, if that is what [her] client wishes[,]” by

providing Rodriguez with a copy of the appellate record. Kelly, 436 S.W.3d at 319. Rodriguez

has not filed a pro se brief.

INDEPENDENT REVIEW

After counsel files a proper Anders brief, the court of appeals must conduct its own review

of the record to ascertain if there are any arguable grounds for the appeal. Schulman, 252 S.W.3d

at 409; Stafford, 813 S.W.2d at 511. We have thoroughly reviewed the record and counsel’s brief

in this case, and we agree with counsel’s professional assessment that the appeal is frivolous and

without merit. Because there is nothing in the record that might arguably support the appeal, a

further discussion of the arguable grounds advanced in counsel’s Anders brief would add nothing

to the jurisprudence of the State.

3 CONCLUSION

We affirm the trial court’s judgment and grant counsel’s motion to withdraw.

January 16, 2015 YVONNE T. RODRIGUEZ, Justice

Before McClure, C.J., Rodriguez, and Hughes, JJ.

(Do Not Publish)