Michael Molina AKA Michal Colina v. State

• Court: Court of Appeals of Texas
• Decided: August 26, 2008
• Docket: 13-07-00705-CR
• Status: Published

Opinion

NUMBER 13-07-00705-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

MICHAEL MOLINA, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 105th District Court of Nueces County, Texas.

MEMORANDUM OPINION

Before Justices Rodriguez, Garza, and Vela Memorandum Opinion by Justice Garza

Appellant, Michael Molina, was charged by indictment with burglary of a habitation,

a second degree felony. See TEX . PENAL CODE ANN . § 30.02(a), (c)(2) (Vernon 2003). A

jury found Molina guilty. On September 13, 2007, the jury sentenced Molina, a habitual

felony offender, to seventy-five years’ imprisonment in the Institutional Division of the

Texas Department of Criminal Justice.1 See id. § 12.42(d) (Vernon Supp. 2007) (“[I]f it is

1 At the punishm ent phase of the trial, Molina pleaded “true” to being a habitual felony offender and to six prior convictions. shown on the trial of a felony offense . . . that the defendant has previously been finally

convicted of two felony offenses, and the second previous felony conviction is for an

offense that occurred subsequent to the first previous conviction having become final, on

conviction he shall be punished by imprisonment . . . for any term of not more than 99

years or less than 25 years.”). The trial court certified Molina’s right to appeal on the same

day.

On October 10, 2007, Molina filed a motion for new trial, alleging that newly

discovered evidence—specifically, an admission by his fourteen-year-old niece, C.P., that

she committed the offense—proved that he was not the one who burglarized the

habitation. On November 20, 2007, after a hearing in which C.P. testified, the trial court

denied Molina’s motion for new trial, noting that C.P. was not a credible witness. Molina

now appeals the judgment of the trial court.

I. ANDERS BRIEF

Pursuant to Anders v. California, 386 U.S. 738, 744 (1967), Molina's court-appointed

appellate counsel has filed a brief with this Court, stating that her review of the record

yielded “no error” and “that the instant appeal is without merit.” Although counsel’s brief

does not advance any arguable grounds of error, it does present a professional evaluation

of the record demonstrating why there are no arguable grounds to be advanced on appeal.

See 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. 1978),

appellant's counsel has carefully discussed why, under controlling authority, there are no

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 on appellant, and (3) informed appellant of his right to review the record

2 and to file a pro se brief. See Anders, 386 U.S. at 744; Stafford, 813 S.W.2d at 510 n.3.

This Court set a June 30, 2008 deadline for Molina to file his pro se brief. No pro se brief

was filed.

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,

826-28 (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. Accordingly, we affirm the

judgment of the trial court.

III. 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. We grant her motion

to withdraw. We further order counsel to notify appellant of the disposition of this appeal

and the availability of discretionary review. See Ex parte Wilson, 956 S.W.2d 25, 27 (Tex.

Crim. App. 1997) (per curiam).

DORI CONTRERAS GARZA, Justice

Do not publish. TEX . R. APP. P. 47.2(b). Memorandum Opinion delivered and filed this the 26th day of August, 2008.