Jose Trinidad Perez v. State ( 2019 )

NUMBER 13-18-00100-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
JOSE TRINIDAD PEREZ, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 389th District Court
of Hidalgo County, Texas.
MEMORANDUM OPINION
Before Justices Benavides, Hinojosa, and Perkes
Memorandum Opinion by Justice Hinojosa
Appellant Jose Trinidad Perez was found guilty by a jury of continuous sexual
abuse of a child, a first-degree felony; indecency with a child by exposure, a third-degree
felony; and four counts of indecency with a child by contact, each second-degree felonies.
See TEX. PENAL CODE ANN. §§ 21.02, 21.11(a)(1), (2). In accordance with the jury’s
assessment of punishment, the trial court sentenced appellant to thirty-five years’
imprisonment for continuous sexual abuse of a child, ten-years’ imprisonment for
indecency with a child by exposure, and eight years’ imprisonment for each count of
indecency with a child by contact. The trial court ordered the sentences to be served
consecutively. See id. § 3.03(b)(2). Appellant’s court-appointed counsel has filed an
Anders brief stating that there are no arguable grounds for appeal. See Anders v.
California, 386 U.S. 738, 744 (1967). We affirm.
I. ANDERS BRIEF
Pursuant to Anders v. California, appellant’s court-appointed appellate counsel
has filed a motion to withdraw and a brief in support thereof in which she states that she
has diligently reviewed the entire record and has found no non-frivolous grounds for
appeal. 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–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, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel
Op.] 1978) and Kelly v. State, 436 S.W.3d 313, 318–19 (Tex. Crim. App. 2014),
appellant’s counsel carefully discussed why, under controlling authority, there is no
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reversible error in the trial court’s judgment. Counsel has informed this Court in writing
that counsel has: (1) notified appellant that counsel has filed an Anders brief and a
motion to withdraw; (2) provided appellant with copies of both pleadings; (3) informed
appellant of appellant’s rights to file a pro se response, 1 review the record preparatory to
filing that response, and seek discretionary review if the court of appeals concludes that
the appeal is frivolous; and (4) provided appellant with a form motion for pro se access to
the appellate record, lacking only appellant’s signature and the date and including the
mailing address for the court of appeals, with instructions to file the motion within ten
days. See Anders, 386 U.S. at 744; Kelly, 436 S.W.3d at 318–19; see also In re
Schulman, 252 S.W.3d at 409 n.23. Appellant requested, and has been provided, pro
se access to the appellate record. However, an adequate time has passed, and
appellant has not filed a pro se response.
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). We have reviewed the entire record and counsel’s brief and found nothing
that would arguably support an appeal. See Bledsoe v. State, 178 S.W.3d 824, 827–28
(Tex. Crim. App. 2005) (“Due to the nature of Anders briefs, by indicating in the opinion
1 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 403, 409 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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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.
III. MOTION TO WITHDRAW
In accordance with Anders, appellant’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,
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.” (citing Jeffery v. State, 903 S.W.2d 776, 779–
80 (Tex. App.—Dallas 1995, no pet.) (citations omitted))). We grant counsel’s motion to
withdraw. Within five days of the date of this Court’s opinion, counsel is ordered to send
a copy of this opinion and this Court’s judgment to appellant and to 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).
2 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 id. R.
68.3. Any petition for discretionary review should comply with the requirements of Texas Rule of Appellate
Procedure 68.4. See id. R. 68.4.
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IV. CONCLUSION
We affirm the trial court’s judgment.
LETICIA HINOJOSA
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
5th day of September, 2019.
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