Rene Rivas Jr. v. State

• Court: Court of Appeals of Texas
• Decided: January 12, 2012
• Docket: 13-11-00139-CR
• Status: Published

Opinion

NUMBER 13-11-00139-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

RENE RIVAS JR., Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 103rd District Court of Cameron County, Texas.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Garza and Vela Memorandum Opinion by Chief Justice Valdez

Appellant, Rene Rivas Jr., was charged with two counts of aggravated assault,

see TEX. PENAL CODE ANN. § 22.02 (West Supp. 2010), and one count of aggravated

sexual assault, see id. § 22.021(a)(1)(A)(i) (West Supp. 2010). The jury found Rivas not

guilty of aggravated sexual assault and both counts of aggravated assault. However,

the jury found Rivas guilty of one count of assault and one count of sexual assault,

which are lesser included offenses. See id. §§ 22.01(a)(1) (assault), 22.011(a)(1) (sexual assault) (West Supp. 2010). The trial court sentenced Rivas to twenty years’

confinement for the sexual assault and one year for the assault with the sentences to

run concurrently. Rivas=s appellate counsel, concluding that the appeal in this cause is

frivolous, filed an Anders brief, in which he reviewed the merits, or lack thereof, of the

appeal. We affirm.

I. ANDERS BRIEF

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

counsel has filed a brief with this Court stating that he has found no reversible error

committed by the trial court and no arguable ground of error upon which an appeal can

be predicated. Counsel’s brief meets the requirements of Anders as it presents a

professional evaluation demonstrating why there are no arguable grounds to advance

on appeal. Counsel’s brief sets out, in great detail, relevant portions of the record that

may provide potentially appealable issues. See In re Schulman, 252 S.W.3d 403, 407

n.9 (Tex. Crim. App. 2008) (AIn 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), Rivas’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 forwarded a copy of his brief to appellant and has informed appellant of his right to

file a pro se response. 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. Rivas’s attorney did not forward a

2 copy of the record to Rivas. However, on October 4, 2011, this Court granted Rivas’s

motion for a free reporter’s record and ordered the trial court to make the appellate

record available to him. Additionally, we granted Rivas an extension of time to file a pro

se response within thirty days of receiving a copy of the record. The trial court informed

us that Rivas received the appellate record on October 28, 2011. We received Rivas’s

pro se response on December 12, 2011.1 See In re Schulman, 252 S.W.3d at 409.

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 Rivas’s

pro se response; however, we have found nothing that would arguably support an

appeal. See Bledsoe v. State, 178 S.W.3d 824, 826-28 (Tex. Crim. App. 2005) (ADue 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

1 In his pro se response, Rivas points to several errors he alleges occurred in the trial court, but then concedes that none of these alleged errors have been preserved for our review. Instead, Rivas maintains that his trial counsel provided ineffective assistance of counsel. However, Rivas then concedes that trial counsel’s reasons for his acts or omissions are unknown because they are not firmly founded in the record.

Although Rivas’s attempt at a direct appeal has been unsuccessful, he is not without a potential remedy. Challenges requiring development of a record to substantiate a claim such as ineffective assistance of counsel may be raised in an application for writ of habeas corpus. See TEX. CODE CRIM. PROC. ANN. art. 11.07 (West Supp. 2010). An application for writ of habeas corpus relief would ―provide an opportunity to conduct a dedicated hearing to consider the facts, circumstances, and rationale behind counsel’s actions at . . . trial.‖ Thompson v. State, 9 S.W.3d 808, 814–15 (Tex. Crim. App. 1999).

3 In accordance with Anders, Rivas’s attorney has asked this Court for permission

to withdraw as counsel. 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. App.—Dallas

1995, no pet.) (AIf 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 Rivas and advise him of his right to file a petition for

discretionary review. 2 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).

_________________ ROGELIO VALDEZ Chief Justice

Do not Publish. TEX. R. APP. P. 47.2(b) Delivered and filed the 12th day of January, 2012.

2 No substitute counsel will be appointed. Should Rivas wish to seek further review of this case by the Texas Court of Criminal Appeals, he must 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 must be filed within thirty days from the date of either this opinion or the last timely motion for rehearing or timely motion for en banc reconsideration that was overruled by this Court. See TEX. R. APP. P. 68.2. Effective September 1, 2011, any petition for discretionary review must be filed with the clerk of the Texas Court of Criminal Appeals. See id. R. 68.3. Any petition for discretionary review should comply with the requirements of Rule 68.4 of the Texas Rules of Appellate Procedure. See id. R. 68.4.