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Jose Castaneda v. State ( 2016 )


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  •                                  NO. 12-15-00312-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
JOSE CASTANEDA,                                §      APPEAL FROM THE 241ST
APPELLANT
V.                                             §      JUDICIAL DISTRICT COURT
THE STATE OF TEXAS,
APPELLEE                                       §      SMITH COUNTY, TEXAS
MEMORANDUM OPINION
PER CURIAM
Jose Castaneda appeals his conviction for aggravated sexual assault of a child.
Appellant’s counsel filed a brief in compliance with Anders v. California,
    386 U.S. 738
    , 87 S.
Ct. 1396,
    18 L. Ed. 2d 493 
    (1967), and Gainous v. State,
    436 S.W.2d 137 
    (Tex. Crim. App.
1969). We affirm.
BACKGROUND
Appellant was charged by indictment with the offense of aggravated sexual assault of a
child, a first degree felony. The indictment also included two felony enhancement paragraphs.
Appellant entered an “open” plea of guilty to the offense charged in the indictment. Appellant
and his counsel signed various documents in connection with his guilty plea, including a
stipulation in which Appellant swore, and judicially confessed, that the facts alleged in the
indictment were true and correct, and constituted the evidence in the case. However, during
Appellant’s plea hearing, the State abandoned the two felony enhancement paragraphs. The trial
court accepted Appellant’s plea, adjudged Appellant guilty of aggravated sexual assault of a
child, and assessed his punishment at life imprisonment. This appeal followed.
ANALYSIS PURSUANT TO ANDERS V. CALIFORNIA
Appellant’s counsel filed a brief in compliance with Anders and Gainous, stating that he
has diligently reviewed the appellate record and is of the opinion that the record reflects no
reversible error and that there is no error upon which an appeal can be predicated. From our
review of counsel’s brief, it is apparent that counsel is well acquainted with the facts in this case.
In compliance with Anders, Gainous, and High v. State,
    573 S.W.2d 807
    , 812 (Tex. Crim. App.
1978), counsel’s brief presents a chronological summation of the procedural history of the case,
and further states that counsel is unable to raise any arguable issues for appeal. We have
reviewed the record for reversible error and have found none.1 See Bledsoe v. State,
    178 S.W.3d 824
    , 826-27 (Tex. Crim. App. 2005).
CONCLUSION
As required, Appellant’s counsel has moved for leave to withdraw in the case. See In re
Schulman,
    252 S.W.3d 403
    , 407 (Tex. Crim. App. 2008) (orig. proceeding); Stafford v. State,
    813 S.W.2d 503
    , 511 (Tex. Crim. App. 1991). We agree with Appellant’s counsel that the
appeal is wholly frivolous. Accordingly, we grant counsel’s motion for leave to withdraw, and
affirm the trial court’s judgment. See TEX. R. APP. P. 43.2.
Counsel has a duty to, within five days of the date of this opinion, send a copy of the
opinion and judgment to Appellant and advise him of his right to file a petition for discretionary
review. See TEX. R. APP. P. 48.4; In re
    Schulman, 252 S.W.3d at 411 
    n.35. 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 he must file a pro se petition for
discretionary review.         See In re
    Schulman, 252 S.W.3d at 408 
    n.22.                        Any petition for
discretionary review must be filed within thirty days from the date of either this opinion or the
day the last timely motion for rehearing was overruled by this court. See TEX. R. APP. P. 68.2(a).
Any petition for discretionary review must be filed with the Texas Court of Criminal Appeals.
See TEX. R. APP. P. 68.3.            Any petition for discretionary review should comply with the
1
Counsel for Appellant certified that he provided Appellant with a copy of his brief and informed
Appellant that he had the right to file his own brief. Appellant was given time to file his own brief, but the time for
filing such a brief has expired and we have received no pro se brief.
2
requirements of Rule 68.4 of the Texas Rules of Appellate Procedure. See TEX. R. APP. P. 68.4;
In re
    Schulman, 252 S.W.3d at 408 
    n.22.
Opinion delivered June 30, 2016.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
(DO NOT PUBLISH)
3
COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
JUNE 30, 2016
NO. 12-15-00312-CR
JOSE CASTANEDA,
Appellant
V.
THE STATE OF TEXAS,
Appellee
Appeal from the 241st District Court
of Smith County, Texas (Tr.Ct.No. 241-0734-15)
THIS CAUSE came to be heard on the appellate record and brief filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court
below for observance.
By per curiam opinion.
Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J.