Ramiro Martinez Espinoza v. State

Opinion

NUMBER 13-09-00038-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

RAMIRO MARTINEZ ESPINOZA, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 377th District Court of Victoria County, Texas.

MEMORANDUM OPINION Before Justices Rodriguez, Benavides, and Vela Memorandum Opinion by Justice Benavides

Appellant, Ramiro Martinez Espinoza, was indicted on two counts of aggravated

sexual assault of a child. See TEX . PENAL CODE ANN . § 22.021(a)(2)(B) (Vernon Supp. 2009).1 He was found not guilty on count 1 and guilty on count 2. He was sentenced to

fifty years’ imprisonment in the Texas Department of Criminal Justice—Institutional

Division.

Espinoza’s appellate counsel, concluding that "there are no arguable grounds to

be advanced on appeal," filed an Anders brief in which he reviewed the merits, or lack

thereof, of the appeal. We affirm.

I. DISCUSSION

Pursuant to Anders v. California, 386 U.S. 738, 744 (1967), appellant’s

court-appointed appellate counsel has filed a brief with this Court, stating that his review

of the record yielded no grounds or error upon which an appeal can be predicated.

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 In re Schulman, 252 S.W.3d 403, 407 n.9 (Tex. Crim.

App. 2008) (“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 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), 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 he has:

1 In count 1, Espinoza was charged with penetration of the anus of a child on or about the 19th day of January 2008. In count 2, he was charged with penetration of the sexual organ of the sam e child on or about the 19th day of January 2008. 2 (1) examined the record and found no arguable grounds to advance on appeal; (2) served

a copy of the brief and counsel’s motion to withdraw on appellant; and (3) informed

appellant of his right to review the record and to file a pro se response within thirty days.2

See Anders, 386 U.S. at 744; Stafford, 813 S.W.2d at 510 n.3; see also In re Schulman,

252 S.W.3d at 409 n.23. A sufficient time has passed, and Espinoza has not filed a pro

se response.

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, 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; see also In re

Schulman, 252 S.W.3d at 408 n.17 (citing Jeffery v. State, 903 S.W.2d 776, 779-80 (Tex.

2 The Texas Court of Crim inal Appeals has held that “the pro se response need not com ply with the rules of appellate procedure in order to be considered. Rather, the response should identify for the court those issues which the indigent appellant believes the court should consider in deciding whether the case presents any m eritorious issues.” In re Schulman, 252 S.W .3d 403, 409 n.23 (Tex. Crim . App. 2008) (quoting W ilson v. State, 955 S.W .2d 693, 696-97 (Tex. App.–W aco 1997, no pet.)). 3 App.–Dallas 1995, no pet.) (noting that “[i]f an attorney believes the appeal is frivolous, he

must withdraw from representing the appellant. To withdraw from representation, the

appointed attorney must file a motion to withdraw accompanied by a brief showing the

appellate court that the appeal is frivolous.”) (citations omitted)). We grant counsel’s

motion to withdraw. Within five days of the date of this Court’s opinion, counsel is ordered

to send a copy of the opinion and judgment to appellant and to advise appellant of his right

to file a petition for discretionary review.3 See TEX . R. APP. P. 48.4; see also In re

Schulman, 252 S.W.3d at 412 n.35; Ex parte Owens, 206 S.W.3d 670, 673 (Tex. Crim.

App. 2006).

__________________________ GINA M. BENAVIDES, Justice

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

Delivered and filed the 8th day of July, 2010.

3 No substitute counsel will be appointed. Should appellant wish to seek further review of this case by the Texas Court of Crim inal Appeals, he m ust 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 m ust be filed within thirty days from the date of either this opinion or the last tim ely m otion for rehearing that was overruled by this Court. See T EX . R. A PP . P. 68.2. Any petition for discretionary review m ust be filed with this Court, after which it will be forwarded to the Texas Court of Crim inal Appeals. See T EX . R. A PP . P. 68.3; 68.7. Any petition for discretionary review should com ply with the requirem ents of Rule 68.4 of the Texas Rules of Appellate Procedure. See T EX . R. A PP . P. 68.4.