Roberto Cervantes v. State ( 2019 )

NUMBER 13-18-00388-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
ROBERTO CERVANTES, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 430th District Court
of Hidalgo County, Texas.
MEMORANDUM OPINION
Before Justices Benavides, Hinojosa, and Perkes
Memorandum Opinion by Justice Benavides
The State charged appellant Roberto Cervantes with a total of thirteen counts of
sexual assault and indecency with a child, involving his three step-daughters. The
charges included: (1) five counts of sexual assault of a child, second-degree felonies, (2)
one count of sexual assault, a second-degree felony, (3) one count of aggravated sexual
assault of a child, a first-degree felony, (4) one count of continuous sexual assault of a
child, a first-degree felony, and (5) five counts of indecency with a child by contact,
second-degree felonies. See TEX. PENAL CODE ANN. §§ 21.02(b), 21.11(a), 22.011(a),
22.021(a). Cervantes was convicted on all counts after a jury trial, and he elected
punishment by the jury. The jury assessed forty years’ imprisonment for the continuous
sexual abuse of a child, eighteen years’ imprisonment for aggravated sexual abuse of a
child, twenty years’ imprisonment for sexual assault of a child, fifteen years’ imprisonment
for sexual assault, seven years’ imprisonment for four counts of sexual assault of a child,
three years’ imprisonment for two counts of indecency by contact, and two years’
imprisonment for three counts of indecency by contact that the trial court probated to a
five year term of community supervision. See id. §§ 21.02(h), 21.11(d), 22.011(f),
22.021(e). The trial court imposed the sentences of imprisonment to run concurrently,
with the community supervision to run consecutively to the sentences of imprisonment in
the Texas Department of Criminal Justice–Institutional Division. Cervantes’s court-
appointed appellate counsel has filed an Anders brief. See Anders v. California, 386
U.S. 738, 744 (1967). We affirm.
I. ANDERS BRIEF
Pursuant to Anders, Cervantes’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
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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 and Kelly v. State, Cervantes’s counsel carefully
discussed why, under controlling authority, there is no reversible error in the trial court’s
judgment. See High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel Op.] 1978);
Kelly v. State, 436 S.W.3d 313, 319–22 (Tex. Crim. App. 2014). Cervantes’s appellate
counsel also notified this Court that he: (1) notified Cervantes that he has filed an Anders
brief and a motion to withdraw; (2) provided Cervantes with copies of both pleadings; (3)
informed Cervantes of his rights to file a pro se response,1 review the record preparatory
to filing that response, and seek discretionary review if we conclude that the appeal is
frivolous; (4) provided Cervantes with a copy of the appellate record; and (5) informed
Cervantes 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; see also
In re Schulman, 252 S.W.3d at 409 n.23. Cervantes did not file a pro se response.
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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.” See In re Schulman, 252 S.W.3d 403, 407 n.23 (Tex. Crim. App.
2008) (quoting Wilson v. State, 955 S.W.2d 693, 696–97 (Tex. App.—Waco 1997, no pet.)).
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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 is 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. Kelly v. State, 436 S.W.3d 313, 319 (Tex. Crim. App. 2014);
Bledsoe v. State, 178 S.W.3d 824, 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. Bledsoe, 178 S.W.3d 824, at 827.
We have reviewed the entire record and counsel’s brief; 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.
III. MOTION TO WITHDRAW
In accordance with Anders, Cervantes’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 (“[I]f an attorney believes the appeal is frivolous,
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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.”) (quoting Jeffrey 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 this Court’s opinion, counsel is ordered to send a copy of this opinion
and this Court’s judgment to Cervantes and advise him of his right to file a petition for
discretionary review.2 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 judgment of the trial court.
GINA M. BENAVIDES,
Justice
Do not publish.
TEX. R. APP. P. 47.2 (b).
Delivered and filed the
26th day of August, 2019.
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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 Texas Court of Criminal Appeals, see id.
R. 68.3, and should comply with the requirements of the Texas Rule of Appellate Procedure 68.4. See id.
R. 68.4.
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