Ricardo Rodriguez v. State ( 2014 )

NUMBER 13-14-00105-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
RICARDO RODRIGUEZ, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 28th District Court
of Nueces County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Garza
Memorandum Opinion by Justice Rodriguez
Appellant Ricardo Rodriguez pleaded guilty to one count of impersonating a public
servant, a third-degree felony. See TEX. PENAL CODE ANN. § 37.11 (West, Westlaw
through 2013 3d C.S.). Pursuant to the plea agreement, the trial court sentenced
Rodriguez to ten years’ community supervision. Subsequently, the State filed a motion
to revoke. After Rodriguez pleaded true to the allegations in the motion, the trial court
revoked his community supervision and sentenced him to five years’ imprisonment. This
appeal followed.
Determining that the appeal in this cause is frivolous and without merit, counsel
filed an Anders brief in which he reviewed the merits, or lack thereof, of the appeal. We
affirm the judgment of the trial court.
I. COMPLIANCE WITH ANDERS
Pursuant to Anders v. California, Rodriguez's counsel filed a brief stating that, after
a review of the record, an appeal in this case would be frivolous “as there are no colorable
issues to raise.” See 386 U.S. 738, 744–45 (1967). Counsel's brief meets the
requirements of Anders as it presents a professional evaluation showing why there are
no meritorious grounds for advancing an appeal. See In re Schulman, 252 S.W.3d 403,
407 n.9 (Tex. Crim. App. 2008) (orig. proceeding) (“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)
(en banc).
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), counsel
has demonstrated that he has complied with the requirements of Anders by discussing
2
why, under controlling authority, any appeal from the judgment would be without merit
and frivolous. Counsel specifically determined, after examining the record, that: (1)
generally, appellant may not appeal matters related to his original plea proceeding after
his community supervision has been revoked and his adjudication of guilt formally made,
and no exception to this general rule applied; (2) the indictment complied with the law; (3)
Rodriguez made no objections at the revocation hearing and pleaded true to the
allegations in the motion to revoke; (4) the five-year sentence was within the range of
punishment allowed for a third-degree felony; (5) the judgment reflected the appropriate
sentence and time-served credit; and (6) trial counsel provided effective assistance.
Counsel has also informed this Court, in writing, that he has: (1) notified Rodriguez that
counsel has filed an Anders brief in support of his motion to withdraw as counsel; (2)
provided Rodriguez with copies of the pleadings; (3) informed Rodriguez of his right to
file a pro se response,1 to review the record preparatory to filing that response, and to
seek discretionary review if the court of appeals concludes that the appeal is frivolous;
and (4) provided Rodriguez with a form motion for pro se access to the appellate record,
with instructions to file the motion within ten days. See Anders, 386 U.S. at 744; Kelly,
436 S.W.3d at 318–19; Stafford, 813 S.W.2d 503, 510 n.3; see also In re Schulman, 252
S.W.3d at 409 n.23. An adequate time has passed, and Rodriguez has not filed either
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)
(orig. proceeding) (quoting Wilson v. State, 955 S.W.2d 693, 696–97 (Tex. App.—Waco 1997, no pet.)).
3
a timely motion seeking pro se access to the appellate record or a motion for extension
of time to do so. And he has not filed a pro se response.
II. INDEPENDENT REVIEW
Upon receiving an Anders brief, this Court must conduct a full examination of all
proceedings to determine whether the case is wholly frivolous. Pension v. Ohio, 488
U.S. 75, 80 (1988). We have reviewed the entire record, and we have found nothing that
would arguably support an appeal. See Bledsoe v. State, 178 S.W.3d 824, 826–28 (Tex.
Crim. App. 2005) (“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. Accordingly, we affirm the judgment of
the trial court.
III. MOTION TO WITHDRAW
In accordance with Anders, counsel has asked this Court to grant his motion to
withdraw as counsel for Rodriguez. See Anders, 386 U.S. at 744; see also In re
Schulman, 252 S.W.3d at 408 n.17 (citing Jeffery v. State, 903 S.W.2d 776, 779–80 (Tex.
App.—Dallas 1995, no pet.) (“If 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 that this Court carried with the case on September 15, 2014. Within
five days of the date of this Court's opinion, counsel is ordered to send a copy of the
4
opinion and judgment to Rodriguez and to advise Rodriguez of his right to pursue 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).
NELDA V. RODRIGUEZ
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the 4th
day of December, 2014.
2 No substitute counsel will be appointed. Should appellant wish to seek 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 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. at R. 68.3. Any petition for discretionary review should
comply with the requirements of Texas Rule of Appellate Procedure 68.4. See id. at R. 68.4.
5