Orlando Salazar v. State

• Court: Court of Appeals of Texas
• Decided: August 16, 2016
• Docket: 01-15-00365-CR
• Status: Published

Opinion

Opinion issued August 16, 2016

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-15-00365-CR ——————————— ORLANDO SALAZAR, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 340th District Court Tom Green County, Texas Trial Court Case No. C-08-0822-SA

MEMORANDUM OPINION

After appellant, Orlando Salazar, pleaded guilty with an agreed

recommendation on punishment to the second-degree felony offense of aggravated

assault, the trial court deferred adjudication of guilt and placed him on community supervision for five years.1 The State subsequently moved to adjudicate guilt. The

trial court granted the motion to adjudicate, found appellant guilty of the charged

offense, and assessed his punishment at six years’ confinement. The trial court

certified that the case is not a plea-bargain case and that appellant has the right to

appeal. Appellant timely filed a notice of appeal.2

Appellant’s appointed counsel on appeal has filed a motion to withdraw, along

with a brief stating that the record presents no reversible error and the appeal is

without merit and is frivolous. See Anders v. California, 386 U.S. 738, 87 S. Ct.

1396 (1967).

Counsel’s brief meets the Anders requirements by presenting a professional

evaluation of the record and supplying us with references to the record and legal

authority. See id. at 744, 87 S. Ct. at 1400; see also High v. State, 573 S.W.2d 807,

812–13 (Tex. Crim. App. 1978). Counsel indicates that he has thoroughly reviewed

the record and is unable to advance any grounds of error that warrant reversal. See

Anders, 386 U.S. at 744, 87 S. Ct. at 1400; Mitchell v. State, 193 S.W.3d 153, 155

(Tex. App.—Houston [1st Dist.] 2006, no pet.). Counsel has also informed us that

1 See TEX. PENAL CODE ANN. § 22.02(a)(2) (Vernon 2011) (aggravated assault). 2 The Texas Supreme Court transferred this appeal from the Court of Appeals for the Third District of Texas to this Court pursuant to its docket equalization powers. See TEX. GOV’T CODE ANN. § 73.001 (Vernon 2013) (“The supreme court may order cases transferred from one court of appeals to another at any time that, in the opinion of the supreme court, there is good cause for the transfer.”). 2 he delivered a copy of the appellate record and the brief to appellant and informed

him of his right to file a response. See In re Schulman, 252 S.W.3d 403, 408 (Tex.

Crim. App. 2008); see also Kelly v. State, 436 S.W.3d 313, 319 (Tex. Crim. App.

2014) (holding that appellate counsel who files Anders brief must “take concrete

measures to initiate and facilitate the process of actuating his client’s right to review

the appellate record, if that is what his client wishes”).

In his pro se response, appellant argues, among other things, that the trial court

lacked jurisdiction over the case, that the court erred in admitting photographs of the

complainant’s injuries, that the court erred in admitting witness testimony, that the

trial court had a conflict of interest, that the State violated its Brady obligations, and

that his trial counsel rendered ineffective assistance.

We have independently reviewed the entire record in this appeal, and we

conclude that no reversible error exists in the record, there are no arguable grounds

for review, and the appeal is frivolous. See Anders, 386 U.S. at 744, 87 S. Ct. at

1400 (emphasizing that reviewing court—and not counsel—determines, after full

examination of proceedings, whether appeal is wholly frivolous); Garner v. State,

300 S.W.3d 763, 767 (Tex. Crim. App. 2009) (reviewing court must determine

whether arguable grounds for review exist); Bledsoe v. State, 178 S.W.3d 824, 826–

27 (Tex. Crim. App. 2005) (same); Mitchell, 193 S.W.3d at 155 (reviewing court

determines whether arguable grounds exist by reviewing entire record). We note

3 that an appellant may challenge a holding that there are no arguable grounds for

appeal by filing a petition for discretionary review in the Court of Criminal Appeals.

See Bledsoe, 178 S.W.3d at 827 & n.6.

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

withdraw.3 Attorney Frank D. Brown must immediately send appellant the required

notice and file a copy of the notice with the Clerk of this Court. See TEX. R. APP. P.

6.5(c).

PER CURIAM

Panel consists of Justices Keyes, Brown, and Huddle. Do not publish. TEX. R. APP. P. 47.2(b).

3 Appointed counsel still has a duty to inform appellant of the result of this appeal and that he may, on his own, pursue discretionary review in the Court of Criminal Appeals. See Ex parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997) (per curiam). 4