Michael A. Perez v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: June 29, 2023
• Docket: 13-22-00008-CR
• Status: Published

Opinion

NUMBER 13-22-00008-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

MICHAEL A. PEREZ, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 2nd 25th District Court of Gonzales County, Texas.

MEMORANDUM OPINION

Before Justices Benavides, Longoria, and Tijerina Memorandum Opinion by Justice Longoria

Appellant Michael A. Perez was convicted of possession with intent to deliver

cocaine in an amount of four grams or more but less than 200 grams, a first-degree felony.

See TEX. HEALTH & SAFETY CODE ANN. § 481.112(d). Appellant was sentenced to eighty

years’ imprisonment to be served in the Correctional Institutions Division of the Texas

Department of Criminal Justice. See TEX. PENAL CODE ANN. § 12.32(a). Appellant’s court- appointed counsel has filed an Anders brief stating that there are no arguable grounds

for appeal. See Anders v. California, 386 U.S. 738, 744 (1967). We affirm the trial court’s

judgment.

I. ANDERS BRIEF

Pursuant to Anders v. California, appellant’s court-appointed appellate counsel

filed a brief and a motion to withdraw with this Court, stating that his review of the record

yielded no grounds of reversible error upon which an appeal could be predicated. See id.

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) (orig. proceeding) (“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–Edinburg 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) and Kelly v. State, 436 S.W.3d 313, 319–22 (Tex. Crim. App. 2014),

appellant’s counsel carefully discussed why, under controlling authority, there is no

reversible error in the trial court’s judgment. Appellant’s counsel also informed this Court

in writing that he: (1) notified appellant that counsel has filed an Anders brief and a motion

to withdraw; (2) provided appellant with copies of both pleadings; (3) informed appellant

2 of his right to file a pro se response, to review the record prior to filing those responses,

and to seek discretionary review if we conclude that the appeal is frivolous; and

(4) provided appellant with a form motion for pro se access to the appellate record that

only requires appellant’s signature and date with instructions to file the motion within ten

days. See Anders, 386 U.S. at 744; Kelly, 436 S.W.3d at 319–20; see also In re

Schulman, 252 S.W.3d at 408–09.

Appellant filed a motion to abate requesting this Court to “review the trial record

for any errors that may entitle appellant to relief” along with a pro se response to his

appellate counsel’s Anders brief. When appellate counsel files an Anders brief and the

appellant independently files a pro se response, the court of appeals has two choices:

[i]t may determine that the appeal is wholly frivolous and issue an opinion explaining that it has reviewed the record and finds no reversible error. Or, it may determine that arguable grounds for appeal exist and remand the cause to the trial court so that new counsel may be appointed to brief the issues.

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

omitted). We are “not required to review the merits of each claim raised in an Anders brief

or a pro se response.” Id. at 827. Rather, we must merely determine if there are any

arguable grounds for appeal. Id. If we determine there are such arguable grounds, we

must remand for appointment of new counsel. Id. Reviewing the merits raised in a pro se

response would deprive an appellant of the meaningful assistance of counsel. Id.

II. INDEPENDENT REVIEW & APPELLANT’S MOTION TO ABATE

Upon receiving an Anders brief, we must conduct a full examination of all the

3 proceedings to determine whether the case is wholly frivolous. Penson v. Ohio, 488 U.S.

75, 80 (1988). We have reviewed the record and counsel’s brief, and we have found

nothing that would arguably support an appeal. See Bledsoe, 178 S.W.3d at 827–28

(“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 requirements of Texas Rule of Appellate Procedure 47.1.”);

Stafford, 813 S.W.2d at 511. Having already independently reviewed the record, we deny

appellant’s motion to abate as moot.

III. MOTION TO WITHDRAW

In accordance with Anders, appellant’s counsel has asked this Court for

permission to withdraw as counsel. See Anders, 386 U.S. at 744; see also In re

Schulman, 252 S.W.3d at 408 n.17. We grant counsel’s motion to withdraw. Within five

days from 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. 1 See TEX. R. APP. P. 48.4; see also In re Schulman, 252 S.W.3d at

411 n.35; Ex parte Owens, 206 S.W.3d 670, 673 (Tex. Crim. App. 2006).

1 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 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 Texas Court of Criminal Appeals. See id. R. 68.3. Any petition for discretionary review should comply with the requirements of Texas Rule of Appellate Procedure 68.4. See id. R. 68.4.

4 IV. CONCLUSION

We affirm the trial court’s judgment.

NORA L. LONGORIA Justice

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

Delivered and filed on the 29th day of June, 2023.