In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________
No. 02-19-00401-CR ___________________________
TRINIDAD ALVARADO, Appellant
V.
THE STATE OF TEXAS
On Appeal from the 297th District Court Tarrant County, Texas Trial Court No. 1542459D
Before Birdwell, Bassel, and Walker, JJ. Memorandum Opinion by Justice Walker MEMORANDUM OPINION
Appellant Trinidad Alvarado appeals from his conviction and punishment for
possession of a controlled substance. Finding no arguable or potentially plausible
grounds to support the appeal, we affirm the trial court’s judgment. See Tex. R. App.
P. 43.2(a).
On March 5, 2018, Officers Jentry Cotten and Mark Stokes stopped a driver—
later identified as Alvarado—who did not timely activate his turn signal and made an
improper wide turn at an intersection. When Cotten approached the truck, Alvarado
was “fidgeting [and] . . . shifting around in the car.” Cotten saw a black case between
the seats and asked Alvarado to get out of the truck. Alvarado said there was nothing
illegal in the truck and consented to a search of the truck. The case Cotton had seen
contained a small amount of a crystal-like substance that appeared to be
methamphetamine. Cotten gave the case and its contents to Stokes, arrested and
handcuffed Alvarado, and placed Alvarado in the back of the patrol car. Cotten then
noticed a plastic bag on the ground where Alvarado had been standing during the
search of the truck. The bag contained a larger amount of a crystal-like substance that
appeared to be methamphetamine. Later testing confirmed that the substance in the
plastic bag was more than 4 grams of methamphetamine. After Alvarado was taken
to the police station and formally read his rights, he admitted that he knew there was
methamphetamine in the black case in the truck, that the plastic bag of
methamphetamine on the ground was his, and that he had intended to deliver the
2 plastic bag of methamphetamine to someone. He also stated that he “got caught with
seven grams of ice”—methamphetamine.
A grand jury indicted Alvarado with the second-degree felony offense of
intentionally or knowingly possessing at least 4 but less than 200 grams of
methamphetamine. See Tex. Health & Safety Code Ann. § 481.115(a), (d). The State
gave notice that it intended to enhance the available punishment range based on
Alvarado’s felony convictions for possession of a controlled substance with the intent
to deliver in 2003 and for aggravated assault causing serious bodily injury in 1991. See
Tex. Penal Code Ann. § 12.42(d). A jury found Alvarado guilty of the indicted
offense, found the enhancement allegations true, and assessed his punishment at 40
years’ confinement. The trial court sentenced Alvarado accordingly; Alvarado did not
file a motion for new trial but timely appealed.
Alvarado’s court-appointed appellate counsel has filed a motion to withdraw,
accompanied by a brief in support of that motion. In the brief, counsel states that in
his professional opinion, the appeal is frivolous and without merit because there are
no nonfrivolous grounds to be raised. Counsel’s brief and motion meet the
requirements of Anders v. California by presenting a professional evaluation of the
record demonstrating why there are no arguable or potentially plausible grounds for
relief. 386 U.S. 738, 744, 87 S. Ct. 1396, 1400 (1967); see In re Schulman, 252 S.W.3d
403, 406 (Tex. Crim. App. 2008) (orig. proceeding). Counsel has discussed the
evidence adduced at trial, pointed out trial court rulings, and discussed either why the
3 trial court’s ruling was correct or why Alvarado was not harmed. See High v. State,
573 S.W.2d 807, 813 (Tex. Crim. App. [Panel Op.] 1978). After being given access to
the appellate record, Alvarado responded and argued that the drug evidence should
have been suppressed; the State unlawfully withheld his own mental-health history,
which he asserted was exculpatory; and his trial and appellate counsel were
constitutionally ineffective. See Kelly v. State, 436 S.W.3d 313, 319–20 (Tex. Crim. App.
2014). The State responded that it agreed with appellate counsel that there are no
grounds upon which to advance Alvarado’s appeal.
Once an appellant’s court-appointed attorney files a motion to withdraw on the
ground that an appeal is frivolous and fulfills the requirements of Anders, we have a
supervisory obligation to undertake an independent examination of the record. See
Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991); Mays v. State, 904 S.W.2d
920, 922–23 (Tex. App.—Fort Worth 1995, no pet.). In this evaluation, we consider
the record, the arguments raised in the Anders brief, and any response filed by the pro
se appellant. See United States v. Wagner, 158 F.3d 901, 902 (5th Cir. 1998); Schulman,
252 S.W.3d at 407–08; In re A.H., 530 S.W.3d 715, 717 (Tex. App.—Fort Worth 2017,
no pet.). We have carefully reviewed the entire record, counsel’s brief, and Alvarado’s
pro se responses. We independently conclude that there is nothing in the record that
might arguably support the appeal and that the appeal is frivolous. See Bledsoe v. State,
178 S.W.3d 824, 827–28 (Tex. Crim. App. 2005). Accordingly, we grant counsel’s
motion to withdraw and affirm the trial court’s judgment. See Penson v. Ohio, 488 U.S.
4 75, 82–83, 109 S. Ct. 346, 351 (1988); Kelly, 436 S.W.3d at 318–19; Meza v. State,
206 S.W.3d 684, 689 (Tex. Crim. App. 2006).
Although we have disposed of Alvarado’s appeal, we note that appellate
counsel here ably walked the line between discharging his professional obligations
under Anders and assuring that Alvarado’s constitutional rights are honored. See
generally McCoy v. Ct. of App. of Wis., Dist. 1, 486 U.S. 429, 444, 108 S. Ct. 1895, 1904
(1988) (“The Anders brief is not a substitute for an advocate’s brief on the merits. . . .
[I]t is a device for assuring that the constitutional rights of indigent defendants are
scrupulously honored.”). Not all such briefs are so careful. It is not uncommon for
counsel to blur the line between a winnable ground and an arguable or potentially
plausible ground. By doing so, some counsel improperly determine that an appeal is
not winnable and file an Anders brief, contending that there are no arguable or
potentially plausible grounds supporting the appeal. However, sometimes appellate
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In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________
No. 02-19-00401-CR ___________________________
TRINIDAD ALVARADO, Appellant
V.
THE STATE OF TEXAS
On Appeal from the 297th District Court Tarrant County, Texas Trial Court No. 1542459D
Before Birdwell, Bassel, and Walker, JJ. Memorandum Opinion by Justice Walker MEMORANDUM OPINION
Appellant Trinidad Alvarado appeals from his conviction and punishment for
possession of a controlled substance. Finding no arguable or potentially plausible
grounds to support the appeal, we affirm the trial court’s judgment. See Tex. R. App.
P. 43.2(a).
On March 5, 2018, Officers Jentry Cotten and Mark Stokes stopped a driver—
later identified as Alvarado—who did not timely activate his turn signal and made an
improper wide turn at an intersection. When Cotten approached the truck, Alvarado
was “fidgeting [and] . . . shifting around in the car.” Cotten saw a black case between
the seats and asked Alvarado to get out of the truck. Alvarado said there was nothing
illegal in the truck and consented to a search of the truck. The case Cotton had seen
contained a small amount of a crystal-like substance that appeared to be
methamphetamine. Cotten gave the case and its contents to Stokes, arrested and
handcuffed Alvarado, and placed Alvarado in the back of the patrol car. Cotten then
noticed a plastic bag on the ground where Alvarado had been standing during the
search of the truck. The bag contained a larger amount of a crystal-like substance that
appeared to be methamphetamine. Later testing confirmed that the substance in the
plastic bag was more than 4 grams of methamphetamine. After Alvarado was taken
to the police station and formally read his rights, he admitted that he knew there was
methamphetamine in the black case in the truck, that the plastic bag of
methamphetamine on the ground was his, and that he had intended to deliver the
2 plastic bag of methamphetamine to someone. He also stated that he “got caught with
seven grams of ice”—methamphetamine.
A grand jury indicted Alvarado with the second-degree felony offense of
intentionally or knowingly possessing at least 4 but less than 200 grams of
methamphetamine. See Tex. Health & Safety Code Ann. § 481.115(a), (d). The State
gave notice that it intended to enhance the available punishment range based on
Alvarado’s felony convictions for possession of a controlled substance with the intent
to deliver in 2003 and for aggravated assault causing serious bodily injury in 1991. See
Tex. Penal Code Ann. § 12.42(d). A jury found Alvarado guilty of the indicted
offense, found the enhancement allegations true, and assessed his punishment at 40
years’ confinement. The trial court sentenced Alvarado accordingly; Alvarado did not
file a motion for new trial but timely appealed.
Alvarado’s court-appointed appellate counsel has filed a motion to withdraw,
accompanied by a brief in support of that motion. In the brief, counsel states that in
his professional opinion, the appeal is frivolous and without merit because there are
no nonfrivolous grounds to be raised. Counsel’s brief and motion meet the
requirements of Anders v. California by presenting a professional evaluation of the
record demonstrating why there are no arguable or potentially plausible grounds for
relief. 386 U.S. 738, 744, 87 S. Ct. 1396, 1400 (1967); see In re Schulman, 252 S.W.3d
403, 406 (Tex. Crim. App. 2008) (orig. proceeding). Counsel has discussed the
evidence adduced at trial, pointed out trial court rulings, and discussed either why the
3 trial court’s ruling was correct or why Alvarado was not harmed. See High v. State,
573 S.W.2d 807, 813 (Tex. Crim. App. [Panel Op.] 1978). After being given access to
the appellate record, Alvarado responded and argued that the drug evidence should
have been suppressed; the State unlawfully withheld his own mental-health history,
which he asserted was exculpatory; and his trial and appellate counsel were
constitutionally ineffective. See Kelly v. State, 436 S.W.3d 313, 319–20 (Tex. Crim. App.
2014). The State responded that it agreed with appellate counsel that there are no
grounds upon which to advance Alvarado’s appeal.
Once an appellant’s court-appointed attorney files a motion to withdraw on the
ground that an appeal is frivolous and fulfills the requirements of Anders, we have a
supervisory obligation to undertake an independent examination of the record. See
Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991); Mays v. State, 904 S.W.2d
920, 922–23 (Tex. App.—Fort Worth 1995, no pet.). In this evaluation, we consider
the record, the arguments raised in the Anders brief, and any response filed by the pro
se appellant. See United States v. Wagner, 158 F.3d 901, 902 (5th Cir. 1998); Schulman,
252 S.W.3d at 407–08; In re A.H., 530 S.W.3d 715, 717 (Tex. App.—Fort Worth 2017,
no pet.). We have carefully reviewed the entire record, counsel’s brief, and Alvarado’s
pro se responses. We independently conclude that there is nothing in the record that
might arguably support the appeal and that the appeal is frivolous. See Bledsoe v. State,
178 S.W.3d 824, 827–28 (Tex. Crim. App. 2005). Accordingly, we grant counsel’s
motion to withdraw and affirm the trial court’s judgment. See Penson v. Ohio, 488 U.S.
4 75, 82–83, 109 S. Ct. 346, 351 (1988); Kelly, 436 S.W.3d at 318–19; Meza v. State,
206 S.W.3d 684, 689 (Tex. Crim. App. 2006).
Although we have disposed of Alvarado’s appeal, we note that appellate
counsel here ably walked the line between discharging his professional obligations
under Anders and assuring that Alvarado’s constitutional rights are honored. See
generally McCoy v. Ct. of App. of Wis., Dist. 1, 486 U.S. 429, 444, 108 S. Ct. 1895, 1904
(1988) (“The Anders brief is not a substitute for an advocate’s brief on the merits. . . .
[I]t is a device for assuring that the constitutional rights of indigent defendants are
scrupulously honored.”). Not all such briefs are so careful. It is not uncommon for
counsel to blur the line between a winnable ground and an arguable or potentially
plausible ground. By doing so, some counsel improperly determine that an appeal is
not winnable and file an Anders brief, contending that there are no arguable or
potentially plausible grounds supporting the appeal. However, sometimes appellate
counsel should consider throwing a Hail Mary to zealously advocate for the client,
even if unlikely to result in the winning touchdown, while understanding that
governing ethical standards would be violated if they choose to throw that same Hail
Mary in a case where all issues are clearly not arguable or potentially plausible. Our
point is that appellate counsel must be zealous up to the point that the appeal is
determined to be frivolous. See id. at 444, 108 S. Ct. at 1905. Only then may counsel
seek to withdraw and support that request with a brief that specifically delineates how
5 counsel made the conclusion that the appeal is frivolous based on the record. In this
case, counsel did so.
/s/ Brian Walker
Brian Walker Justice
Do Not Publish Tex. R. App. P. 47.2(b)
Delivered: November 4, 2021