Seferino Herrera v. State

Opinion

NUMBER 13-08-00428-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

SEFERINO HERRERA, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 430th District Court of Hidalgo County, Texas.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Yañez and Garza Memorandum Opinion by Justice Yañez

After a trial on the merits, a jury found appellant, Seferino Herrera, guilty of the

offense of sexual assault.1 Appellant was sentenced to thirteen years' confinement. We

affirm.

1 See T EX . P EN AL C O DE A N N . § 22.011(a)(1) (Vernon Supp. 2009). I. ANDERS BRIEF

Pursuant to Anders v. California,2 appellant’s court-appointed appellate counsel has

filed a brief with this Court stating that, after examining the record, he has concluded that

"there are no points of error which could arguably support a meritorious appeal in the

instant cause." After discussing the legal sufficiency of the evidence, the trial court's ruling

pursuant to rule 412 of the Texas Rules of Evidence,3 and the denial of appellant's

requested jury instruction, counsel concludes that each of these arguable issues lack merit.

Counsel's brief meets the requirements of Anders as it presents a professional evaluation

showing why there are no non-frivolous grounds for advancing on appeal.4

In compliance with High v. State,5 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) forwarded a copy of the brief and his request to

withdraw as counsel to appellant; (2) examined the record and found no arguable grounds

to advance on appeal; and (3) informed appellant of his right to review the record and to

file a pro se response.6 More than an adequate period of time has passed, and appellant

has not filed a pro se response.7

2 386 U.S. 738, 744 (1967).

3 See T EX . R. E VID . 412.

4 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 m ust 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).

5 High v. State, 573 S.W .2d 807, 813 (Tex. Crim . App. [Panel Op.] 1978).

6 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. The Texas Court of Crim inal Appeals has held that “the pro se response need not com ply 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 m eritorious issues.” In re Schulman, 252 S.W .3d at 409 n.23 (quoting W ilson v. State, 955 S.W .2d 693, 696-97 (Tex. App.–W aco 1997, no pet.)).

7 See In re Schulman, 252 S.W .3d at 409.

2 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.8 We have reviewed the

entire record and counsel's brief and have found nothing that would arguably support an

appeal.9 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.10 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 the opinion and judgment to appellant and to advise appellant of his right to file a

petition for discretionary review.11

Do not publish. TEX . R. APP. P. 47.2(b). Delivered and filed the 19th day of August, 2010.

8 Penson v. Ohio, 488 U.S. 75, 80 (1988).

9 See Bledsoe v. State, 178 S.W .3d 824, 826-28 (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 m et the requirem ent of Texas Rule of Appellate Procedure 47.1.”); Stafford, 813 S.W .2d at 509.

10 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 “[i]f an attorney believes the appeal is frivolous, he m ust withdraw from representing the appellant. To withdraw from representation, the appointed attorney m ust file a m otion to withdraw accom panied by a brief showing the appellate court that the appeal is frivolous”) (citations om itted)).

11 See T EX . R. A PP . 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). No substitute counsel will be appointed. Should appellant wish to seek further review of this case by the Texas Court of Crim inal Appeals, he m ust 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 m ust be filed within thirty days from the date of either this opinion or the last tim ely m otion for rehearing that was overruled by this Court. See T EX . R. A PP . P. 68.2. Any petition for discretionary review m ust be filed with this Court, after which it will be forwarded to the Texas Court of Crim inal Appeals. See T EX . R. A PP . P. 68.3; 68.7. Any petition for discretionary review should com ply with the requirem ents of Rule 68.4 of the Texas Rules of Appellate Procedure. See T EX . R. A PP . P. 68.4.