Rodolfo Galvan v. State

• Court: Court of Appeals of Texas
• Decided: June 15, 2006
• Docket: 13-03-00330-CR
• Status: Published

Opinion

                                           NUMBER 13-03-330-CR

                                 COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI - EDINBURG 

RODOLFO GALVAN,                                                                      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 Rodriguez and Castillo

                       Memorandum Opinion by Chief Justice Valdez

Appellant, Rodolfo Galvan, appeals his convictions of indecency with a child and aggravated sexual assault of a child.  See Tex. Pen. Code Ann. ' 21.11(a)(1) (Vernon 2003); ' 22.021(a)(1)(B)(i) (Vernon Supp. 2005).  Appellant pled not guilty to the offense.  A jury found appellant guilty of the offenses and assessed punishment at 10 years= confinement for the indecency with a child conviction and 15 years= confinement for the aggravated sexual assault of a child conviction.  Appellant appeals the judgment of the trial court.  We affirm.

I.  Anders Brief

Appellant's counsel has filed an Anders brief with this Court in which he states that he has diligently reviewed the record and concludes that appellant has no non‑frivolous grounds for appeal.  See Anders v. California, 386 U.S. 738, 744 (1967).  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.  Stafford v. State, 813 S.W.2d 503, 510 n.3 (Tex. Crim. App. 1991) (en banc).  In compliance with High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. 1978), counsel has carefully discussed why, under controlling authority, there are no errors in the trial court's judgment.  Counsel certifies that he has served a copy of his brief on appellant and informed appellant of his right to file a pro se brief.  We conclude counsel's brief meets the requirements of Anders.  See Anders, 386 U.S. at 744; High, 573 S.W.2d at 812.  More than thirty days have passed and no pro se brief has been filed.   

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 and counsel=s brief and we have found nothing that would arguably support an appeal.  See Bledsoe v. State, 178 S.W.3d 824, 826 (Tex. Crim. App. 2005).  We agree the appeal is frivolous and without merit.  Accordingly, we affirm the judgment of the trial court.  See id.; Stafford, 813 S.W.2d at 509.

III.  Motion to Withdraw

The Court of Criminal Appeals, in Stafford v. State, stated that an Anders brief should be filed along with a request to withdraw from the case in the appeals court.  See Stafford, 813 S.W.2d at 511.  We note that counsel has not filed a motion to withdraw in this case.  ABy not filling a motion to withdraw, appellate counsel exhibited a basic, and  common misunderstanding about Anders cases.@  See Jeffery v. State, 903 S.W.2d 776, 778 (Tex. App.BDallas 1995, no pet.).  While we prefer appointed counsel filing a frivolous appeal to strictly adhere to the procedures required by Anders, counsel=s failure to file a motion to withdraw does not prohibit us from deciding the appeal.  See Smith v. Robbins, 528 U.S. 259, 265 (2000).  If counsel wishes to file a motion to withdraw, he must file the motion no later than fifteen days from the date of this opinion.

We order counsel to advise appellant promptly of the disposition of this case and the availability of discretionary review.  See Ex parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997) (per curiam).

_______________________

ROGELIO VALDEZ

Chief Justice

Do not publish.                                            

Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and

filed this the 15th day of June, 2006.