Ricky Hernandez v. State

• Court: Court of Appeals of Texas
• Decided: April 14, 2016
• Docket: 13-15-00193-CR
• Status: Published

Opinion

NUMBER 13-15-00193-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

RICKY HERNANDEZ, Appellant,

v.

THE STATE OF TEXAS, Appellee.

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

MEMORANDUM OPINION

Before Chief Justice Valdez and Justice Rodriguez and Garza Memorandum Opinion by Justice Rodriguez Appellant Ricky Hernandez was convicted on two counts of aggravated sexual

assault, a first-degree felony. See TEX. PENAL CODE ANN. § 22.021 (West, Westlaw

through 2015 R.S.). The jury sentenced Hernandez to two life sentences, to run

concurrently. This appeal followed. Determining that there are no issues that might arguably support an appeal,

counsel filed an Anders brief in which he reviewed the merits of the appeal. We affirm

the judgment of the trial court.

I. COMPLIANCE WITH ANDERS

Pursuant to Anders v. California, Hernandez's court-appointed counsel filed a brief

stating that, after diligent review of the record and applicable law, it was his professional

opinion that the case presented no reversible error and that any appeal would be without

merit and frivolous. See 386 U.S. 738, 744–45 (1967). Counsel explained the basis of

his opinion by reference to the record facts, procedural history, and pertinent legal

authority. See In re Schulman, 252 S.W.3d 403, 407 n.9 (Tex. Crim. App. 2008) (orig.

proceeding); High v. State, 573 S.W.2d 807, 811 (Tex. Crim. App. [Panel Op.] 1978).

Counsel’s explanation demonstrates due diligence and conscientious examination of the

case. See Anders, 386 U.S. at 744; In re Schulman, 252 S.W.3d at 407. Counsel’s

brief thus satisfies Anders’s requirement to render a “professional evaluation”

demonstrating 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) (en banc); see also In

re Schulman, 252 S.W.3d at 407 n.9 (“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.”).

Pursuant to Kelly v. State, 436 S.W.3d 313, 318–19 (Tex. Crim. App. 2014),

counsel informed this Court in writing that he has: (1) notified Hernandez that counsel

has filed an Anders brief and a motion to withdraw as his counsel and provided him with

copies of his brief and motion; (2) informed him of his right to file a pro se response and 2 to review the record prior to filing that response; (3) informed Hernandez of his right to

seek discretionary review if this Court concludes that the appeal is frivolous; and (4)

provided Hernandez with a form motion for pro se access to the appellate record, with

instructions to file the motion. Counsel also indicated that he provided Hernandez with

a copy of the reporter’s and clerk’s records in this action.

Hernandez filed a motion seeking pro se access to the appellate record and a

motion for extension of time to file a pro se response. We granted both. Hernandez’s

pro se response was due on March 7, 2016. An adequate time has passed, and

Hernandez has not filed a pro se response.

II. INDEPENDENT REVIEW

Upon receiving an Anders brief, this Court must conduct a full examination of all

proceedings to determine whether the case is wholly frivolous. Pension v. Ohio, 488

U.S. 75, 80 (1988). We have reviewed the entire record and counsel’s appellate brief,

and we have found nothing that would arguably support an appeal. See Bledsoe v.

State, 178 S.W.3d 824, 827–28 (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.”). Accordingly, we affirm the

judgment of the trial court.

III. MOTION TO WITHDRAW

In accordance with Anders, counsel has asked this Court to grant his motion to

withdraw as counsel after conscientious examination of Hernandez’s case. See Anders,

386 U.S. at 744; see also In re Schulman, 252 S.W.3d at 408 n.17 (“If an attorney believes 3 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. See Meza v. State, 206 S.W.3d 684, 689 (Tex.

Crim. App. 2006). Within five days of the date of this Court's opinion, counsel is ordered

to send a copy of the opinion and judgment to Hernandez and to advise Hernandez of his

right to pursue a petition for discretionary review.1 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).

NELDA V. RODRIGUEZ Justice

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

Delivered and filed the 14th day of April, 2016.

1 No substitute counsel will be appointed. Should appellant wish to seek 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 either the date of this opinion or the date the last timely motion for rehearing or en banc reconsideration is overruled by this Court. TEX. R. APP. P. 68.2(a). Any petition for discretionary review must be filed with the clerk of the Texas Court of Criminal Appeals. Id. at R. 68.3. Any petition for discretionary review should comply with the requirements of Texas Rule of Appellate Procedure 68.4. See id. at R. 68.4; In re Schulman, 252 S.W.3d 403, 408 n.22 (Tex. Crim. App. 2008). 4