Abraham Moreno v. State ( 2009 )

NO. 07-08-0365-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
APRIL 29, 2009
______________________________
ABRAHAM MORENO, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 242nd DISTRICT COURT OF HALE COUNTY;
NO. B 17634-0805; HONORABLE ED SELF, JUDGE
_______________________________
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
Following a plea of not guilty, Appellant, Abraham Moreno, was convicted by a jury
of possession of cocaine and sentenced to five years confinement. In presenting this
appeal, counsel has filed an Anders1 brief in support of a motion to withdraw. We grant
counsel’s motion and affirm.
In support of his motion to withdraw, counsel certifies he has conducted a
conscientious examination of the record and, in his opinion, the record reflects no
potentially plausible basis to support an appeal. Anders v. California, 386 U.S. 738, 744-
45, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967); In re Schulman, 252 S.W.3d 403, 406
(Tex.Crim.App. 2008). Counsel candidly discusses why, under the controlling authorities,
the appeal is frivolous. See High v. State, 573 S.W.2d 807, 813 (Tex.Crim.App. 1978).
Counsel has demonstrated that he has complied with the requirements of Anders and In
re Schulman by (1) providing a copy of the brief to Appellant, (2) notifying him of his right
to file a pro se response if he desired to do so, and (3) informing him of his right to file a
pro se petition for discretionary review. In re Schulman, 252 S.W.3d at 408.2 By letter, this
Court granted Appellant thirty days in which to exercise his right to file a response to
counsel’s brief, should he be so inclined. Id. at 409 n.23. Appellant did not file a response.
Neither did the State favor us with a brief.
1
Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967).
2
Notwithstanding that Appellant was informed of his right to file a pro se petition for
discretionary review upon execution of the Trial Court’s Certification of Defendant’s Right
of Appeal, counsel must comply with Rule 48.4 of the Texas Rules of Appellate Procedure
which provides that counsel shall within five days after this opinion is handed down, send
Appellant a copy of the opinion and judgment together with notification of his right to file
a pro se petition for discretionary review. In re Schulman, at 408 n.22 & at 411 n.35.
2
By the Anders brief, counsel raises a potential issue of legal and factual sufficiency
of the evidence. He then concludes after a review of all the evidence that under the
appropriate standards of review, reversal is not required.
We have independently examined the entire record to determine whether there are
any non-frivolous issues which might support the appeal. See Penson v. Ohio, 488 U.S.
75, 109 S. Ct. 346, 102 L. Ed. 2d 300 (1988); In re Schulman, 252 S.W.3d at 409; Stafford
v. State, 813 S.W.2d 503, 511 (Tex.Crim.App. 1991). We have found no such issues.
See Gainous v. State, 436 S.W.2d 137 (Tex.Crim.App. 1969). After reviewing the record
and counsel’s brief, we agree with counsel that there are no plausible grounds for appeal.
See Bledsoe v. State, 178 S.W.3d 824 (Tex.Crim.App. 2005).
Accordingly, counsel's motion to withdraw is granted and the trial court’s judgment
is affirmed.
Patrick A. Pirtle
Justice
Do not publish.
3