Apolinar Marquez Camposano v. State ( 2016 )

Opinion issued October 11, 2016
In The
Court of Appeals
For The
First District of Texas
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NO. 01-15-00041-CR
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APOLINAR MARQUEZ CAMPOSANO, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 284th District Court
Montgomery County, Texas
Trial Court Case No. 08-05-04380-CR
MEMORANDUM OPINION
A jury convicted appellant, Apolinar Marquez Camposano, of the offense of
murder. See TEX. PENAL CODE ANN. § 19.02(b)(1) (West 2011). Appellant pleaded
guilty pursuant to an agreement with the State for an open plea to the court with a
punishment cap of thirty years. After waiving his right to have a jury assess his
punishment, the trial court sentenced appellant to thirty years’ confinement. The trial
court granted an out-of-time appeal.1
Appellant’s appointed counsel on appeal has filed a motion to withdraw, along
with a brief stating that the record presents no reversible error and the appeal is
without merit and is frivolous. See Anders v. California, 386 U.S. 738, 87 S. Ct.
1396 (1967).
Counsel’s brief meets the Anders requirements by presenting a professional
evaluation of the record and supplying us with references to the record and legal
authority. See id. at 744, 87 S. Ct. at 1400; High v. State, 573 S.W.2d 807, 812 (Tex.
Crim. App. 1978). After a thorough review of the record, counsel asserts that no
viable points of error exist for the purpose of a direct appeal. See Anders, 386 U.S.
at 744, 87 S. Ct. at 1400; Mitchell v. State, 193 S.W.3d 153, 155 (Tex. App.—
Houston [1st Dist.] 2006, no pet.).
In his pro se response, appellant argues, among other things, that (1) the trial
court erred in relying on the PSI report in light of counsel’s objection because the
1
See Ex parte Camposano, No. WR–82,334–01, 2014 WL 6789446, at *1 (Tex.
Crim. App. Nov. 19, 2014) (mem. op., not designated for publication) (granting
appellant’s habeas petition because his initial appellate counsel failed to timely file
notice of appeal, and finding that appellant was entitled to file out-of-time notice of
appeal related to sentencing). The Texas Supreme Court transferred this appeal
from the Ninth Court of Appeals to this Court pursuant to its docket equalization
powers. See TEX. GOV’T CODE ANN. § 73.001 (West Supp. 2015).
2
PSI report contained a misleading and false statement regarding a prior probated
sentence; and (2) he received ineffective assistance of counsel.
We have independently reviewed the entire record in this appeal, and we
conclude that no reversible error exists in the record, there are no arguable grounds
for review, and the appeal is frivolous. See Anders, 386 U.S. at 744, 87 S. Ct. at 1400
(emphasizing that reviewing court—and not counsel—determines, after full
examination of proceedings, whether appeal is wholly frivolous); Garner v. State,
300 S.W.3d 763, 767 (Tex. Crim. App. 2009) (reviewing court must determine
whether arguable grounds for review exist); Bledsoe v. State, 178 S.W.3d 824, 826–
27 (Tex. Crim. App. 2005) (same); Mitchell, 193 S.W.3d at 155 (reviewing court
determines whether arguable grounds exist by reviewing entire record). We note
that an appellant may challenge a holding that there are no arguable grounds for
appeal by filing a petition for discretionary review in the Texas Court of Criminal
Appeals. See Bledsoe, 178 S.W.3d at 827 & n.6.
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We affirm the judgment of the trial court and grant counsel’s motion to
withdraw.2 Attorney Michael Young must immediately send appellant the required
notice and file a copy of the notice with the Clerk of this Court. See TEX. R. APP. P.
6.5(c).
PER CURIAM
Panel consists of Justices Jennings, Keyes, and Brown.
Do not publish. TEX. R. APP. P. 47.2(b).
2
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 Ex Parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997).
4