Rafael Turcios v. State

Opinion

Opinion issued August 9, 2012

In The Court of Appeals For The First District of Texas

NO. 01-10-00747-CR ____________

RAFAEL TURCIOS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 209th District Court Harris County, Texas Trial Court Cause No. 1221167

MEMORANDUM OPINION Appellant, Rafael Turcios, pleaded guilty to the offense of aggravated

robbery, without an agreed recommendation from the State regarding punishment.

See TEX. PENAL CODE ANN. § 29.03 (Vernon 2003). The trial court found appellant

guilty, entered an affirmative finding that a deadly weapon was used or exhibited,

and assessed punishment at confinement for 40 years. Appellant timely filed a

notice of appeal.

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

Anders brief stating that the record presents no reversible error and therefore the

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

S. Ct. 1396 (1967). We grant counsel’s motion to withdraw and affirm the trial

court’s judgment.

An attorney has an ethical obligation to refuse to prosecute a frivolous

appeal. In re Schulman, 252 S.W.3d 403, 407 (Tex. Crim. App. 2008). If an

appointed attorney finds a case to be wholly frivolous, his obligation to his client is

to seek leave to withdraw. Id. Counsel’s obligation to the appellate court is to

assure it, through an Anders brief, that, after a complete review of the record, the

request to withdraw is well-founded. Id.

We may not grant the motion to withdraw until:

(1) the attorney has sent a copy of his Anders brief to his client along with a letter explaining that the defendant has the right to file a pro se brief within 30 days, and he has ensured that his client has, at some point, been informed of his right to file a pro se PDR; (2) the attorney has informed us that he has performed the above duties; (3) the defendant has had time in which to file a pro se response; and (4) we have reviewed the record, the Anders brief, and any pro se brief.

See id. at 408–09. If we agree that the appeal is wholly frivolous, we will grant the

attorney’s motion to withdraw and affirm the trial court’s judgment. See Garner v.

State, 300 S.W.3d 763, 766 (Tex. Crim. App. 2009). If we conclude that arguable

grounds for appeal exist, we will grant the motion to withdraw, abate the case, and

remand it to the trial court to appoint new counsel to file a brief on the merits. See

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

Here, counsel’s brief reflects that he delivered a copy of the Anders brief to

appellant and informed him of his right to examine the appellate record and to file a

pro se response. See Schulman, 252 S.W.3d at 408. Appellant did not file a pro se

response.1 See id. at 409 n.23 (adopting 30-day period for response).

Counsel’s brief meets the Anders requirements in that it presents a

professional evaluation of the record. See Anders, 386 U.S. at 744, 87 S. Ct. at

1 On January 13, 2012, the Court granted a third extension of time for appellant to file a pro se response, ordering that his response, if any, be filed by February 12, 2012 and that, absent extraordinary circumstances, no further extensions would be granted. 3 1400; see also High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. 1978). Counsel

supplies us with references to the record and provides us with citation to legal

authorities. Counsel indicates that he has thoroughly reviewed the record, has

consulted with appellant as well as with trial counsel, and that he is unable to

advance any grounds that would warrant reversal. See Anders, 386 U.S. at 744, 87

S. Ct. at 1400; Mitchell v. State, 193 S.W.3d 153, 154 (Tex. App. – Houston [1st

Dist.] 2006, no pet.).

We have independently reviewed the entire record, and we conclude that no

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

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

1400; Garner, 300 S.W.3d at 767 (explaining that frivolity is determined by

considering whether there are “arguable grounds” for review); Bledsoe, 178 S.W.3d

at 826–27 (emphasizing that reviewing court—and not counsel—determines, after

full examination of proceedings, whether the appeal is wholly frivolous); Mitchell,

193 S.W.3d at 155. Although we may issue an opinion explaining why the appeal

lacks arguable merit, we are not required to do so. See Garner, 300 S.W.3d at 767.

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 827 & n.6.

4 We grant counsel’s motion to withdraw2 and affirm the appeal. Attorney

David L. Garza must immediately send the notice required by Texas Rule of

Appellate Procedure 6.5(c) and file a copy of the notice with the Clerk of this Court.

See TEX. R. APP. P. 6.5(c). Any other pending motions are dismissed as moot.

PER CURIAM

Panel consists of Justices Higley, Sharp, and Huddle.

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

2 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 Texas Court of Criminal Appeals. See Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim. App. 2005). 5