Roland Perez v. State

• Court: Court of Appeals of Texas
• Decided: July 30, 2015
• Docket: 13-14-00671-CR
• Status: Published

Opinion

NUMBER 13-14-00671-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

ROLAND PEREZ, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 319th District Court of Nueces County, Texas.

MEMORANDUM OPINION Before Chief Justice Valdez and Justices Benavides and Perkes Memorandum Opinion by Justice Benavides

The State charged appellant, Roland Perez, with aggravated assault, a second-

degree felony, see TEX. PENAL CODE ANN. § 22.02 (West, Westlaw through Ch. 46 2015

R.S.), related to an incident that took place on January 7, 2013 in Nueces County. On

August 14, 2013, Perez pleaded guilty to the lesser-included offense of deadly conduct, a third-degree felony, see id. § 22.05(b) (West, Westlaw through Ch. 46 2015 R.S.). The

trial court deferred adjudication of Perez’s guilt and placed him on community supervision

for two years with various conditions, including: a $2,500 fine of which $1,750 was

suspended if Perez paid $750 within the first year of community supervision; sixty hours

of community supervision; anger management classes; and no contact with the victim.

On July 11, 2014, the State filed a motion to revoke Perez’s community supervision

on grounds that he violated several conditions of his community supervision, including

that he failed to: (1) report to his community supervision officer for five consecutive

months; (2) pay his fine, his monthly supervision fee, as well as urinalysis and blood

analysis fee; (3) satisfactorily participate in the Treatment Alternative to Incarceration

Program; and (4) attend anger management classes as directed. Perez pleaded true to

all of the allegations in the State’s motion to revoke. As a result, the trial court found the

grounds to revoke true, revoked Perez’s community supervision, and sentenced him to

four years in the Texas Department of Criminal Justice—Institutional Division. Perez’s

court-appointed counsel has filed an Anders brief. See Anders v. California, 386 U.S.

738, 744 (1967). We affirm.

I. ANDERS BRIEF

Pursuant to Anders v. California, Perez’s court-appointed appellate counsel has

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. See id.

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

2 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) and Kelly v. State, 436 S.W.3d 313, 319–22 (Tex. Crim. App. 2014), Perez’s

counsel carefully discussed why, under controlling authority, there is no reversible error

in the trial court's judgment. Perez’s appellate counsel also notified this Court that he

(1) notified Perez that he has filed an Anders brief and a motion to withdraw; (2) provided

Perez with copies of both pleadings; (3) informed Perez of his rights to file a pro se

response,1 review the record preparatory to filing that response, and seek discretionary

review if we concluded that the appeal is frivolous; (4) provided Perez with a copy of the

appellate record; and (5) informed Perez that the pro se response, if any, should identify

for the Court those issues which he believes the Court should consider in deciding

whether the case presents any meritorious issues. See Anders, 386 U.S. at 744; Kelly,

436 S.W.3d at 319–20, Stafford, 813 S.W.2d at 510 n.3; see also In re Schulman, 252

S.W.3d at 409 n.23. A reasonable amount of time has passed, and Perez has not filed

a pro se brief.

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.)).

3 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). 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.

We have reviewed the entire record and counsel’s brief, and we have found

nothing that would arguably support an appeal. See id. 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, Perez’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.

App.—Dallas 1995, no pet.) (“[I]f an attorney believes the appeal is frivolous, he must

4 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 Perez 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).

GINA M. BENAVIDES, Justice

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

Delivered and filed the 30th day of July, 2015.

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. Any petition for discretionary review must be filed with the clerk of the Court of Criminal Appeals, see TEX. R. APP. P. 68.3, and should comply with the requirements of Texas Rule of Appellate Procedure 68.4. See TEX. R. APP. P. 68.4.