Rodolfo Orozco Duran v. State

• Court: Court of Appeals of Texas
• Decided: June 28, 2012
• Docket: 13-10-00520-CR
• Status: Published

Opinion

NUMBERS 13-10-00520-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

RODOLFO OROZCO DURAN, Appellant,

v.

THE STATE OF TEXAS, Appellee.

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

MEMORANDUM OPINION Before Justices Rodriguez, Vela, and Perkes Memorandum Opinion by Justice Perkes Appellant, Rodolfo Orozco Duran, appeals his conviction for aggravated assault, a

second-degree felony enhanced to a first-degree felony by a prior felony conviction. See

TEX. PENAL CODE ANN. §§ 22.02(a)(2) & 12.42(b) (West 2011). Following a jury trial,

appellant was found guilty, sentenced to a term of forty years of confinement in the Texas

Department of Criminal Justice, Institutional Division, and fined $10,000. Appellant timely perfected this appeal and, as discussed below, his court-appointed

counsel filed an Anders brief. We affirm.

I. ANDERS BRIEF

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

court-appointed appellate counsel filed a brief and a motion to withdraw with this Court,

stating that his review of the record yielded no grounds 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. 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 carefully discussed why, under controlling authority, there is no

reversible error in the trial court’s judgment. Counsel has informed this Court that he has:

(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.1 See Anders, 386 U.S. at 744;

1 The Texas Court of Criminal Appeals has held that “the pro se response need not comply 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 meritorious issues.” In re Schulman, 252 S.W.3d 403, 409 n.23 (Tex. Crim. App. 2008) (quoting Wilson v. State, 955 S.W.2d 693, 696–97 (Tex. App.—Waco 1997, no pet.)). 2 Stafford, 813 S.W.2d at 510 n.3; see also In re Schulman, 252 S.W.3d at 409 n.23.

Appellant has responded by filing a timely pro se brief.

II. INDEPENDENT REVIEW

A court of appeals has two options when an Anders brief and a subsequent pro se

response are filed. After reviewing the entire record, it may: (1) determine that the appeal is

wholly frivolous and issue an opinion explaining that it finds no reversible error; or (2)

determine that there are arguable grounds for appeal and remand the case to the trial court

for appointment of new appellate counsel. Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex.

Crim. App. 2005). If the court finds arguable grounds for appeal, it may not review those

grounds until after new counsel has briefed those issues on appeal. Id.

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, 178 S.W.3d at 827–28 (“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. There is no reversible error in the record. Accordingly, the judgment of the trial court

is affirmed.

III. MOTION TO WITHDRAW

In accordance with Anders, appellant’s attorney 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. App.—Dallas 3 1995, no pet.) (“[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 this opinion and this

Court’s judgment to appellant and to 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).

Gregory T. Perkes Justice

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

Delivered and filed the 28th day of June, 2012.

2 No substitute counsel will be appointed. Should appellant 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 Court of Criminal Appeals. See TEX. R. APP. P. 68.3. Any petition for discretionary review should comply with the requirements of Texas Rule of Appellate Procedure 68.4. See TEX. R. APP. P. 68.4. 4