Roman Luna Rodriguez, Jr. v. State

• Court: Court of Appeals of Texas
• Decided: July 21, 2011
• Docket: 13-10-00385-CR
• Status: Published

Opinion

NUMBER 13-10-00385-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

ROMAN LUNA RODRIGUEZ JR., Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 398th District Court of Hidalgo County, Texas.

MEMORANDUM OPINION Before Chief Justice Valdez and Justices Rodriguez and Benavides Memorandum Opinion by Justice Benavides Roman Luna Rodriguez Jr., appellant, pleaded guilty to aggravated sexual

assault of a child and was sentenced to ten years confinement in June 2003. See TEX.

PENAL CODE ANN. ' 22.021(a)(2)(B) (West Supp. 2010). In 2010, Rodriguez filed a pro

se motion seeking DNA testing and examination under code of criminal procedure,

article 64.01. See TEX. CODE CRIM. PROC. ANN. art. 64.01 (West Supp. 2010). The

motion was denied. Rodriguez then filed a pro se notice of appeal. This court abated the matter and remanded to the trial court for a hearing on indigence and appointment of

appellate counsel. After a hearing, the trial court appointed appellate counsel.

Rodriguez’s appellate counsel, concluding that "there are no arguable grounds to

be advanced on appeal," filed an Anders brief in which he reviewed the merits, or lack

thereof, of the appeal. Thereafter, Rodriguez filed a pro se response. We affirm.

I. DISCUSSION

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

court-appointed appellate counsel has filed a brief with this Court, stating that his review

of the record yielded no grounds or error upon which an appeal can be predicated.

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. 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), appellant'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: (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 within

2 thirty days.1 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. Rodriguez also filed a pro se response.

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

Rodriguez’s pro se response and 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

In accordance with Anders, appellant=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.) (noting that A[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

1 The Texas Court of Criminal Appeals has held that Athe 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 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 appellant and to advise

appellant of his right to file a petition for discretionary review. 2 See TEX. R. APP. P. 48.4.

________________________ GINA M. BENAVIDES, Justice

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

Delivered and filed the 21st day of July, 2011.

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 that was overruled by this Court. See TEX. R. APP. P. 68.2. Any petition for discretionary review must be filed with this Court, after which it will be forwarded to the Texas Court of Criminal Appeals. See TEX. R. APP. P. 68.3, 68.7. Any petition for discretionary review should comply with the requirements of Rule 68.4 of the Texas Rules of Appellate Procedure. See TEX. R. APP. P. 68.4.