Fernando Rodas v. State ( 2011 )

Opinion issued October 6, 2011

In The

Court of Appeals

For The

First District of Texas

NO. 01-10-00459-CR

____________

FERNANDO RODAS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 184th District Court

Harris County, Texas

Trial Court Cause No. 1124515

MEMORANDUM OPINION

Appellant, Fernando Rodas, pleaded guilty to robbery.  See Tex. Penal Code Ann. § 29.02 (Vernon 2011).  The trial court assessed punishment at four years’ deferred adjudication community supervision and a $500 fine.  Subsequently, the State moved for an adjudication of appellant’s guilt, on the grounds that appellant had violated the conditions of his community supervision. At a hearing on the motion, appellant pleaded not true to the allegation in the State’s motion to adjudicate guilt. The trial court found the allegations true, adjudged appellant guilty of the original charge, and assessed punishment at eight years’ confinement.  The trial court certified that this is not a plea bargain case and that appellant has the right of appeal.  Appellant timely filed a notice of appeal.

Appellant’s counsel on appeal has filed a motion to withdraw, along with an Anders brief stating that the record presents no reversible error and therefore the appeal is without merit and is frivolous.  See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396 (1967).  We grant counsel’s motion to withdraw and affirm the trial court’s judgment.

An attorney has an ethical obligation to refuse to prosecute a frivolous appeal.  In re Schulman, 252 S.W.3d 403, 407 (Tex. Crim. App. 2008).  If an appointed attorney finds a case to be wholly frivolous, his obligation to his client is to seek leave to withdraw.  Id.  Counsel’s obligation to the appellate court is to assure it, through an Anders brief, that, after a complete review of the record, the request to withdraw is well-founded. Id.

We may not grant the motion to withdraw until:

(1)     the attorney has sent a copy of his Anders brief to his client along with a letter explaining that the defendant has the right to file a pro se brief within 30 days, and he has ensured that his client has, at some point, been informed of his right to file a pro se PDR;

(2)     the attorney has informed us that he has performed the above duties;

(3)     the defendant has had time in which to file a pro se response; and

(4)     we have reviewed the record, the Anders brief, and any pro se brief.

See id. at 408–09.  If we agree that the appeal is wholly frivolous, we will grant the attorney’s motion to withdraw and affirm the trial court’s judgment. See Garner v. State, 300 S.W.3d 763, 766 (Tex. Crim. App. 2009).  If we conclude that arguable grounds for appeal exist, we will grant the motion to withdraw, abate the case, and remand it to the trial court to appoint new counsel to file a brief on the merits.  See Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim. App. 2005). 

Here, counsel’s brief reflects that he delivered a copy of the brief to appellant and informed him of his right to examine the appellate record and to file a response. See Schulman, 252 S.W.3d at 408.  More than 30 days have passed, and appellant has not filed a pro se brief.  See id. at 409 n.23 (adopting 30-day period for response). 

          Counsel’s brief meets the Anders requirements in that it presents a professional evaluation of the record. See Anders, 386 U.S. at 744, 87 S. Ct. at 1400; see also High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. 1978).  Counsel supplies us with references to the record and provides us with citation to legal authorities.  Counsel indicates that he has thoroughly reviewed the record and that he is unable to advance any grounds of error that warrant reversal.  See Anders, 386 U.S. at 744, 87 S. Ct. at 1400; Mitchell v. State, 193 S.W.3d 153, 154 (Tex. App.—Houston [1st Dist.] 2006, no pet.). 

We have independently reviewed the entire record, and we conclude that no reversible error exists in the record, that there are no arguable grounds for review, and that therefore the appeal is frivolous. See Anders, 386 U.S. at 744, 87 S. Ct. at 1400; Garner v. State, 300 S.W.3d 763, 767 (Tex. Crim. App. 2009) (explaining that frivolity is determined by considering whether there are “arguable grounds” for review); Bledsoe, 178 S.W.3d at 826–27 (emphasizing that reviewing court—and not counsel—determines, after full examination of proceedings, whether the appeal is wholly frivolous); Mitchell, 193 S.W.3d at 155.  An appellant may challenge a holding that there are no arguable grounds for appeal by filing a petition for discretionary review in the Court of Criminal Appeals. See Bledsoe, 178 S.W.3d 827 & n.6.

We grant counsel’s motion to withdraw[1] and dismiss the appeal. Attorney Joseph W. Verela must immediately send the notice required by Texas Rule of Appellate Procedure 6.5(c) and file a copy of that notice with the Clerk of this Court.  See Tex. R. App. P. 6.5(c).

PER CURIAM

Panel consists of Chief Justice Radack and Justices Bland and Huddle.

Do not publish. Tex. R. App. P. 47.2(b).

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[1]               Appointed counsel still has a duty to inform appellant of the result of this appeal and that he may, on his own, pursue discretionary review in the Texas Court of Criminal Appeals. See Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005).