Marcos Villagomez v. State

• Court: Court of Appeals of Texas
• Decided: April 14, 2011
• Docket: 13-10-00301-CR
• Status: Published

Opinion

NUMBER 13-10-00301-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

MARCOS VILLAGOMEZ, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 156th District Court of Bee County, Texas.

MEMORANDUM OPINION Before Justices Garza, Vela, and Perkes Memorandum Opinion by Justice Perkes

Appellant, Marcos Villagomez, appeals his conviction for attempted sexual

assault. See TEX. PENAL CODE ANN. §§ 15.01(a), 22.011(a) (West 2003 & Supp. 2010).

The offense was a third-degree felony, enhanced by two prior felony convictions. See id.

§§ 15.01(d), 22.011(f), 12.42(d) (West Supp. 2009). After a jury found appellant guilty of

the charged offense, the trial court received punishment evidence, found the enhancement allegations to be true, and sentenced appellant to a term of thirty-five years

of confinement in the Texas Department of Criminal Justice. Appellant filed a notice of

appeal, and as discussed below, his court-appointed counsel filed an Anders brief. We

affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

Appellant was living in his brother and sister-in-law‟s apartment. One morning

when his brother was away from the apartment, appellant attempted to sexually assault

his sister-in-law. Shortly after leaving the apartment with her children, she reported the

incident to law enforcement. Appellant‟s sister-in-law and family members who helped

her report the incident to law enforcement testified at trial.

II. ANDERS BRIEF

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

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

Court, stating that his 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).

2 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,

there are no reversible errors 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.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 period of time has passed and

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

III. 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 counsels‟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.

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.)). 3 IV. 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

(Tex. App.—Dallas 1995, no pet.) (noting that “[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 advise him 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).

Gregory T. Perkes Justice

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

Delivered and filed the 14th day of April, 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 Texas Rule of Appellate Procedure 68.4. See TEX. R. APP. P. 68.4. 4