Oscar G. Hernandez v. the State of Texas ( 2022 )

NUMBER 13-20-00197-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
OSCAR G. HERNANDEZ, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 226th District Court
of Bexar County, Texas.
MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Benavides and Longoria
Memorandum Opinion by Chief Justice Contreras
A jury convicted appellant Oscar G. Hernandez of sexual assault, a second-degree
felony. See TEX. PENAL CODE ANN. § 22.011. Appellant pleaded true to the enhancement
paragraph in the amended indictment. Appellant elected for the trial court to assess
punishment and he was sentenced to a ten-year term of imprisonment in the Texas
Department of Criminal Justice, Correctional Institutions Division (TDCJ).
Appellant filed a notice of appeal. Appellant’s court-appointed appellate counsel
has filed an Anders brief stating that there are no arguable grounds for appeal. See
Anders v. California, 386 U.S. 738, 744 (1967). We affirm. 1
I. ANDERS BRIEF
Pursuant to Anders v. California, appellant’s court-appointed appellate counsel
filed a brief and a motion to withdraw with this Court, stating that his review of the record
yielded no grounds of reversible 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) (orig. proceeding) (“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–Edinburg 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),
appellant’s counsel carefully discussed why, under controlling authority, there is no
reversible error in the trial court’s judgment. Appellant’s counsel also informed this Court
in writing that he: (1) notified appellant that counsel filed an Anders brief and a motion to
withdraw; (2) provided appellant with copies of both pleadings; (3) informed appellant of
1 This appeal was transferred from the Fourth Court of Appeals in San Antonio pursuant to a
docket-equalization order rendered by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. § 73.001.
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his rights to file a pro se response, to review the record prior to filing a response, and to
seek discretionary review in the Texas Court of Criminal Appeals if this Court finds that
the appeal is frivolous; and (4) supplied appellant with a form motion for pro se access to
the appellate record that includes the Court’s mailing address, instructions to file the
motion within ten days, and only requires appellant’s signature and the date. 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. An adequate time has passed, and appellant
has not filed a pro se response. 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. Penson v. Ohio, 488 U.S.
75, 80 (1988). We have reviewed counsel’s brief and the entire record, and we have found
nothing that would support a finding of reversible error. See Bledsoe v. State, 178 S.W.3d
824, 827–28 (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.
III. MOTION TO WITHDRAW
In accordance with Anders, appellant’s counsel asked this Court for permission to
withdraw as counsel. See Anders, 386 U.S. at 744; see also In re Schulman, 252 S.W.3d
2 On May 12, 2021, we granted appellant’s motions for pro se access to the appellate record and
for a free copy of the record. We also granted appellant’s motion for extension of time to file a pro se brief
for thirty days from the date that he received his copy of the record. The trial court notified this Court that
appellant received a copy of the record on June 17, 2021. To date, appellant has not filed a pro se response.
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at 408 n.17 (citing Jeffery v. State, 903 S.W.2d 776, 779–80 (Tex. App.—Dallas 1995, no
pet.)). 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. 3 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).
IV. CONCLUSION
We affirm the trial court’s judgment.
DORI CONTRERAS
Chief Justice
Do not publish.
TEX. R. APP. P. 47.2 (b).
Delivered and filed on the
10th day of February, 2022.
3 No substitute counsel will be appointed. If appellant seeks 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. A petition for discretionary review
must be filed with the clerk of the Texas Court of Criminal Appeals. See id. R 68.3. Any petition for
discretionary review should comply with the requirements of Texas Rule of Appellate Procedure 68.4. See
id. R. 68.4.
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