Gabriel Palacios v. State ( 2015 )

Opinion issued November 17, 2015
In The
Court of Appeals
For The
First District of Texas
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NO. 01-13-00944-CR
NO. 01-13-00945-CR1
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GABRIEL PALACIOS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from 338th District Court
Harris County, Texas
Trial Court Cause Nos. 1360054 & 1360055
MEMORANDUM OPINION
A jury convicted appellant, Gabriel Palacios, of the first-degree felony
offense of aggravated sexual assault of a child under the age of fourteen, and of the
1
Appellate cause no. 01-13-00944-CR; trial court cause no. 1360054.
Appellate cause no. 01-13-00945-CR; trial court cause no. 1360055.
second-degree felony offense of indecency with a child by touching, with the
separately-indicted cases consolidated for trial. See TEX. PENAL CODE ANN.
§§21.11(a)(1), (c), (d), 22.021(a)(1)(B)(ii), (a)(2)(B), (e) (West Supp. 2014).
Following a punishment hearing, the trial court assessed appellant’s punishment at
twenty-five years’ confinement for the conviction of aggravated sexual assault of a
child under the age of fourteen, and ten years’ confinement for the conviction of
indecency with a child, to be served concurrently. Both sentences are within the
applicable sentencing ranges. See id. §§ 12.32(a), 12.33(a) (West Supp. 2014).
Appellant timely filed a combined notice of appeal for both cases.
Appellant’s appointed counsel on appeal has filed a combined motion to
withdraw, along with a combined Anders brief stating that the records present no
reversible error and that, therefore, these appeals are without merit and are
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 this Court with references to the record and
legal authority. See id. at 744, 87 S. Ct. at 1400; see also High v. State, 573
S.W.2d 807, 812 (Tex. Crim. App. 1978). Counsel indicates that she has
thoroughly reviewed the records and 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, 155 (Tex. App.—Houston [1st Dist.] 2006, no pet.).
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Appellant’s counsel has informed us that she has delivered a copy of the
motion to withdraw and Anders brief to appellant and informed him of his right to
file a response after getting access to the records. See In re Schulman, 252 S.W.3d
403, 408 (Tex. Crim. App. 2008). Furthermore, a copy of the records in each
appeal has been sent to appellant for his review to prepare a response. See Kelly v.
State, 436 S.W.3d 313, 322 (Tex. Crim. App. 2014). Appellant has not filed any
response to his counsel’s Anders brief.
We have independently reviewed the entire records in these combined
appeals, and we conclude that no reversible error exists in the records, that there
are no arguable grounds for review, and that therefore these appeals are 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 the
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); 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
Texas Court of Criminal Appeals. See Bledsoe, 178 S.W.3d at 827 n.6.
Accordingly, we affirm the judgments of the trial court in both trial court
cause numbers, and grant counsel’s motion to withdraw in both appellate cause
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numbers.2 Attorney Deborah Summers must immediately send the required notice
and file a copy of that notice with the Clerk of this Court. See TEX. R. APP. P.
6.5(c). We dismiss any pending motions as moot.
PER CURIAM
Panel consists of Justices Keyes, Massengale, and Lloyd.
Do not publish. TEX. R. APP. P. 47.2(b).
2
Appointed counsel still has a duty to inform appellant of the result of these appeals
and that he may, on his own, pursue discretionary review in the Texas Court of
Criminal Appeals. See Bledsoe, 178 S.W.3d at 826–27.
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