David Estrada AKA David Estrada Jr. v. State ( 2017 )

NUMBER 13-17-00199-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
DAVID ESTRADA, A/K/A
DAVID ESTRADA JR., Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 117th District Court
of Nueces County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Benavides, and Longoria
Memorandum Opinion by Justice Benavides
This is an appeal from a judgment adjudicating guilt and revoking an order of
community supervision. In 2014, a Nueces County grand jury indicted then 20-year-old
appellant David Estrada a/k/a David Estrada, Jr. with aggravated robbery, a first-degree
felony, related to allegations that Estrada robbed a Stripes convenience store in Corpus
Christi of $40 and a pack of chewing gum by threatening the store clerk with a hatchet.
See TEX. PENAL CODE ANN. § 29.03 (West, Westlaw through 2017 1st C.S.). Estrada
subsequently pleaded guilty as charged. The trial court received Estrada’s plea of guilty,
deferred adjudication, and placed him on community supervision for a term of eight years.
Additionally, the trial court imposed several conditions and terms to Estrada’s probation.
In February 2016, the State filed its first motion to revoke Estrada’s community
supervision. In its motion, the State alleged that Estrada committed numerous violations
of his community supervision, including: failure to report as required, failure to pay various
fees, and failure to attend a treatment alternative to incarceration program (TAIP). After
considering the State’s motion, the trial court continued Estrada’s community supervision
and ordered that he be placed in an intermediate sanction facility.
Ten months later, the State filed its second motion to revoke Estrada’s community
supervision. In its motion, the State alleged that Estrada violated various terms and
conditions of his community supervision, including inter alia: testing positive for marijuana;
admitting to smoking marijuana to his community supervision officer; and failing to
complete his required community supervision hours. Two months later, the State filed an
amended motion to revoke, alleging that in addition to the violations alleged in the second
motion to revoke, Estrada had also committed the offenses of aggravated sexual assault,
see id. § 22.021 (West, Westlaw through 2017 1st C.S.); and aggravated kidnapping. See
id. § 20.04 (West, Westlaw through 2017 1st C.S.).1
1 The State alleged that Estrada committed a third offense, engaging in organized criminal activity.
See TEX. PENAL CODE ANN. § 71.02 (West, Westlaw through 2017 1st C.S.). However, the State abandoned
this allegation at the time of Estrada’s revocation hearing.
2
The trial court held a hearing on the State’s amended motion to revoke, where
Estrada pleaded “not true” to all of the State’s allegations. At the hearing, the State
received evidence from Estrada’s community supervision officer, who testified that Estrada
committed all of the violations alleged, including testing positive for marijuana use and
admitting to marijuana use. Furthermore, the trial court received evidence from Brandon
Earhart, an acquaintance of Estrada, who testified about the allegations that Estrada had
committed the offenses of aggravated sexual assault and aggravated kidnapping. Earhart
testified that Estrada and others bound him and his girlfriend at a home in Corpus Christi,
after accusing Earhart and his girlfriend of stealing their “dope.” Earhart further testified
that later during the ordeal, he was threatened with a pistol to watch Estrada force
Earhart’s girlfriend to perform oral sex on Estrada. Earhart stated that he eventually
escaped captivity and later called police to report the incident. At the hearing, Earhart
positively identified Estrada as well as photographs admitting into evidence of Estrada’s
home, where the incident took place. At the close of the revocation hearing, the State
requested that the trial court revoke Estrada’s community supervision and sentence him
to sixty years’ imprisonment. Estrada’s defense attorney argued mitigating circumstances
and prayed for a ten-year sentence. The trial court found all of the State’s allegations true,
and sentenced Estrada to thirty-five years’ imprisonment with the Texas Department of
Criminal Justice—Institutional Division. This appeal followed.
Estrada’s court-appointed appellate counsel has filed an Anders brief. See Anders
v. California, 386 U.S. 738, 744 (1967). We affirm.
3
I. ANDERS BRIEF
Pursuant to Anders v. California, Estrada’s court-appointed appellate counsel has
filed a brief and a motion to withdraw with this Court, stating that his review of the record
yielded no grounds of 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) (“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
2003, no pet.)); Stafford v. State, 813 S.W.2d 503, 510 n.3 (Tex. Crim. App. 1991).
In compliance with High v. State and Kelly v. State, Estrada’s counsel carefully
discussed why, under controlling authority, there is no reversible error in the trial court’s
judgment. See High, 573 S.W.2d at 813; Kelly, 436 S.W.3d at 319–22. Estrada’s
appellate counsel also notified this Court that he: (1) notified Estrada that he has filed an
Anders brief and a motion to withdraw; (2) provided Estrada with copies of both pleadings;
(3) informed Estrada of his rights to file a pro se response, review the record preparatory
to filing that response,2 and seek discretionary review if we concluded that the appeal is
frivolous; (4) provided Estrada with a pro se motion for access to the appellate record; and
2 The Texas Court of Criminal Appeals has held that “the pro se response need not comply with the
rules of appellate procedure in order to be considered. Rather the response should identify for the court
those issues which the indigent appellant believes the court should consider in deciding whether the case
presents any meritorious issues.” In re Schulman, 252 S.W.3d at 409 n.23 (quoting Wilson v. State, 955
S.W.2d 693, 696–97 (Tex. App.—Waco 1997, no pet.).
4
(5) informed Estrada that the pro se response, if any, should identify for the Court those
issues which he believes the Court should consider in deciding whether the case presents
any meritorious issues. See Anders, 386 U.S. at 744; Kelly, 436 S.W.3d at 319–20;
Stafford, 813 S.W.2d at 510; see also In re Schulman, 252 S.W.3d at 409 n.23.
On June 21, 2017, pursuant to a pro se motion filed by Estrada, this Court ordered
that the trial court ensure that Estrada is given the opportunity to fully examine the
appellate record. The trial court and the trial court clerk later provided this Court with
written documentation of its compliance with our order.
On September 29, 2017, Estrada filed a one-page, handwritten pro se response
with this Court. In the response, Estrada argues that his sentence of thirty-five years’
imprisonment was excessive in light of the new sentences he received in his subsequent
convictions of aggravated kidnapping and aggravated assault. Specifically, Estrada
requests that his sentence be reduced to between eight and twenty years.
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). A court of appeals has two options when an Anders brief and a subsequent
pro se response are filed. After reviewing the entire record, it may: (1) determine that the
appeal is wholly frivolous and issue an opinion explaining that it finds no reversible error;
or (2) determine that there are arguable grounds for appeal and remand the case to the
trial court for appointment of new appellate counsel. Bledsoe v. State, 178 S.W.3d 824,
5
826–27 (Tex. Crim. App. 2005). If the court finds arguable grounds for appeal, it may not
review those grounds until after new counsel has briefed those issues on appeal. Id.We have reviewed the entire record, counsel’s brief, and Estrada’s pro se response.
We have found nothing that would arguably support an appeal. See id. at 827–28 (“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. There is no reversible error in the record. Accordingly, the judgment
of the trial court is affirmed.
III. MOTION TO WITHDRAW
In accordance with Anders, Estrada’s attorney has asked this Court for permission
to withdraw as counsel for appellant. See Anders, 386 U.S. at 744; see also In re
Schulman, 252 S.W.3d at 408 n.17 (citing Jeffrey v. State, 903 S.W.2d 776, 779–80 (Tex.
App.—Dallas 1995, no pet.) (“[I]f an attorney believes the appeal is frivolous, he must
withdraw from representing the appellant. To withdraw from representation, the appointed
attorney must file a motion to withdraw accompanied by a brief showing the appellate court
that the appeal is frivolous.”) (citations omitted)). We grant counsel’s motion to withdraw.
Within five days of this Court’s opinion, counsel is ordered to send a copy of this opinion
and this Court’s judgment to Estrada and advise him of his right to file a petition for
6
discretionary review.3 See TEX. R. APP. P. 48.4; see also In re Schulman, 252 S.W.3d at412 n.35; Ex Parte Owens, 206 S.W.3d 670, 673 (Tex. Crim. App. 2006).
IV. CONCLUSION
We affirm the judgment of the trial court.
GINA M. BENAVIDES,
Justice
Do not publish.
TEX. R. APP. P. 47.2 (b).
Delivered and filed the
16th day of November, 2017.
3 No substitute counsel will be appointed. 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 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. Any petition for
discretionary review must be filed with the clerk of the Court of Criminal Appeals, see TEX. R. APP. P. 68.3,
and should comply with the requirements of the Texas Rule of Appellate Procedure 68.4. See TEX. R. APP.
P. 68.4.
7