Nancy Lopez Elevario v. State

• Court: Court of Appeals of Texas
• Decided: July 7, 2005
• Docket: 13-03-00573-CR
• Status: Published

Opinion

                             NUMBER 13-03-00573-CR

                         COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI B EDINBURG

NANCY LOPEZ ELEVARIO,                                                             Appellant,

                                                             v.

THE STATE OF TEXAS,                                                                    Appellee.

   On appeal from the 138th District Court of Cameron County, Texas.

                       MEMORANDUM OPINION

    Before Chief Justice Valdez and Justices Hinojosa and Rodriguez

                         Memorandum Opinion by Justice Hinojosa

On October 13, 1997, appellant, Nancy Lopez Elevario, pleaded guilty to the offense of delivery of more than five but less than fifty pounds of marihuana.  The trial court sentenced appellant to ten years= imprisonment, suspended the sentence, and placed her on community supervision for ten years.    

On November 13, 1998, the State filed a motion to revoke appellant=s community supervision.  Appellant pleaded Atrue@ to all of the State=s allegations.  After hearing and considering the motion and evidence, the trial court (1) found that appellant had violated the conditions of her community supervision, (2) revoked her community supervision, and (3) assessed her punishment at ten years= imprisonment.  The trial court has certified that this is not plea-bargain case, and Athe defendant has the right of appeal.@  See Tex. R. App. P. 25.2(a)(2). 

A.  Anders Brief

Appellant=s court-appointed attorney has filed an Anders brief asserting there is no basis for this appeal.  See Anders v. California, 386 U.S. 738, 744 (1967).  In the brief, counsel states that he has reviewed the clerk=s record and reporter=s record and has concluded that this appeal is frivolous and without merit.  See id.  The brief meets the requirements of Anders as it presents a professional evaluation showing why there are no arguable grounds for advancing an 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. [Panel Op.] 1978), counsel has carefully discussed why, under the controlling authorities, there are no errors in the trial court=s judgment.  In the brief, appellant=s counsel certifies that he has informed appellant of her right to review the appellate record and to file a pro se brief.  No such brief has been filed.

                                         B.  Independent Review of Record

Upon receiving a Afrivolous appeal@ brief, the appellate courts must conduct Aa full examination of all the proceedings to decide whether the case is wholly frivolous.@  Penson v. Ohio, 488 U.S. 75, 80 (1988); see Garza v. State, 126 S.W.3d 312, 313 (Tex. App.BCorpus Christi 2004, no pet.).  We have carefully reviewed the appellate record and counsel=s brief.  We find nothing in the record that might arguably support this appeal.  Accordingly, we affirm the trial court=s judgment.       

                                                        C.  Anders Counsel

An appellate court may grant counsel's motion to withdraw filed in connection with an Anders brief.  Moore v. State, 466 S.W.2d 289, 291 n.1 (Tex. Crim. App. 1971); see Stafford, 813 S.W.2d at 511 (noting that Anders brief should be filed with request for withdrawal from case). We note that counsel has not filed a motion to withdraw in this case.  If counsel wishes to file a motion to withdraw, he must file the motion no later than fifteen days from the date of this opinion. 

We order counsel to advise appellant promptly of the disposition of this case and the availability of discretionary review.  See Ex parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997) (per curiam).

FEDERICO G. HINOJOSA

Justice

Do not publish.  See Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and filed this

the 7th day of July, 2005.