Thomas Perez v. State

Opinion

NUMBER 13-10-00044-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

THOMAS PEREZ, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 347th District Court of Nueces County, Texas.

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

Appellant Thomas Perez appeals his conviction for retaliation, a third-degree felony.

See TEX. PEN. CODE ANN. § 36.06 (Vernon 2003). At trial, appellant testified in his own

defense and admitted he assaulted the complainant. Following the jury trial on

guilt-innocence, the trial court received evidence on punishment and sentenced appellant to

six years of confinement in the Texas Department of Criminal Justice. Appellant filed a timely notice of appeal, and as discussed below, his court-appointed counsel filed an Anders

brief. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

The evidence at trial showed that appellant and several cohorts stole pallets from the

complainant during a July fourth celebration at a public beach. The pallets were being used

to make a bonfire. The complainant called the police who arrived at the scene and asked

appellant and his group to leave the area. Appellant and his group departed from the area,

but returned shortly after the police left.

At trial, appellant testified in his own defense, admitting he assaulted the complainant.

On cross examination, appellant admitted he had multiple prior felony convictions and at

least one prior misdemeanor conviction involving a crime of moral turpitude. Appellant and

the three other men were tried together as co-defendants, and all were found guilty.

II. ANDERS BRIEF

Pursuant to Anders v. California, 386 U.S. 738, 744 (1967), appellant‟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. 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). 2 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 reversible 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.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. More than an adequate period of time has passed, and appellant has not filed a pro

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

III. 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 have found

nothing that would arguably support an appeal. 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 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.

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 IV. 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 “[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 24th day of February, 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 Texas Rule of Appellate Procedure 68.4. See TEX. R. APP. P. 68.4. 4