Roland Perez v. State ( 2015 )


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  •                            NUMBER 13-14-00671-CR
    COURT OF APPEALS
    THIRTEENTH DISTRICT OF TEXAS
    CORPUS CHRISTI - EDINBURG
    ROLAND PEREZ,                                                             Appellant,
    v.
    THE STATE OF TEXAS,                                                        Appellee.
    On appeal from the 319th District Court
    of Nueces County, Texas.
    MEMORANDUM OPINION
    Before Chief Justice Valdez and Justices Benavides and Perkes
    Memorandum Opinion by Justice Benavides
    The State charged appellant, Roland Perez, with aggravated assault, a second-
    degree felony, see TEX. PENAL CODE ANN. § 22.02 (West, Westlaw through Ch. 46 2015
    R.S.), related to an incident that took place on January 7, 2013 in Nueces County.   On
    August 14, 2013, Perez pleaded guilty to the lesser-included offense of deadly conduct,
    a third-degree felony, see 
    id. § 22.05(b)
    (West, Westlaw through Ch. 46 2015 R.S.). The
    trial court deferred adjudication of Perez’s guilt and placed him on community supervision
    for two years with various conditions, including: a $2,500 fine of which $1,750 was
    suspended if Perez paid $750 within the first year of community supervision; sixty hours
    of community supervision; anger management classes; and no contact with the victim.
    On July 11, 2014, the State filed a motion to revoke Perez’s community supervision
    on grounds that he violated several conditions of his community supervision, including
    that he failed to: (1) report to his community supervision officer for five consecutive
    months; (2) pay his fine, his monthly supervision fee, as well as urinalysis and blood
    analysis fee; (3) satisfactorily participate in the Treatment Alternative to Incarceration
    Program; and (4) attend anger management classes as directed.           Perez pleaded true to
    all of the allegations in the State’s motion to revoke.   As a result, the trial court found the
    grounds to revoke true, revoked Perez’s community supervision, and sentenced him to
    four years in the Texas Department of Criminal Justice—Institutional Division. Perez’s
    court-appointed counsel has filed an Anders brief.        See Anders v. California, 
    386 U.S. 738
    , 744 (1967). We affirm.
    I. ANDERS BRIEF
    Pursuant to Anders v. California, Perez’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
    2
    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).
    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
    , 319–22 (Tex. Crim. App. 2014), Perez’s
    counsel carefully discussed why, under controlling authority, there is no reversible error
    in the trial court's judgment.      Perez’s appellate counsel also notified this Court that he
    (1) notified Perez that he has filed an Anders brief and a motion to withdraw; (2) provided
    Perez with copies of both pleadings; (3) informed Perez of his rights to file a pro se
    response,1 review the record preparatory to filing that response, and seek discretionary
    review if we concluded that the appeal is frivolous; (4) provided Perez with a copy of the
    appellate record; and (5) informed Perez 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, 
    Stafford, 813 S.W.2d at 510
    n.3; see also In re 
    Schulman, 252 S.W.3d at 409
    n.23. A reasonable amount of time has passed, and Perez has not filed
    a pro se brief.
    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.)).
    3
    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 and a
    subsequent pro se response are 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.      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.   
    Id. We have
    reviewed the entire record and counsel’s brief, and 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.    Accordingly, the judgment of the trial
    court is affirmed.
    III. MOTION TO WITHDRAW
    In accordance with Anders, Perez’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 (citing Jeffery v. State, 
    903 S.W.2d 776
    , 779–80 (Tex.
    App.—Dallas 1995, no pet.) (“[I]f an attorney believes the appeal is frivolous, he must
    4
    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.         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 Perez 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).
    GINA M. BENAVIDES,
    Justice
    Do not publish.
    TEX. R. APP. P. 47.2 (b).
    Delivered and filed the
    30th day of July, 2015.
    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 TEX.
    R. APP. P. 68.3, and should comply with the requirements of Texas Rule of Appellate Procedure 68.4. See
    TEX. R. APP. P. 68.4.
    5