Jhony Virreira v. State ( 2019 )

Opinion issued April 18, 2019
In The
Court of Appeals
For The
First District of Texas
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NO. 01-18-00826-CR
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JHONY VIRREIRA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the County Criminal Court at Law No. 16
Harris County, Texas
Trial Court Case No. 2154070
MEMORANDUM OPINION
A jury found appellant, Jhony Virreira, guilty of the misdemeanor offense of
assault of a family member.1 The trial court assessed appellant’s punishment at
confinement for one year, suspended the sentence, and placed him on community
supervision for two years. The trial court certified that this case is not a plea-bargain
case and appellant has the right to appeal. Appellant timely filed a notice of appeal.
Appellant’s appointed counsel on appeal has filed a motion to withdraw, along
with a brief stating that the record presents no reversible error and the appeal is
without merit and is frivolous. See Anders v. California, 386 U.S. 738 (1967).
Counsel’s brief meets the Anders requirements by presenting a professional
evaluation of the record and supplying us with references to the record and legal
authority. Id. at 744; see also High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App.
1978). Counsel indicates that he has thoroughly reviewed the record and is unable
to advance any grounds of error that warrant reversal. See Anders, 386 U.S. at 744;
Mitchell v. State, 193 S.W.3d 153, 155 (Tex. App.—Houston [1st Dist.] 2006, no
pet.).
Counsel has informed the Court that he delivered to appellant a copy of the
brief, the clerk’s record, the reporter’s record, the supplemental reporter’s record,
and a form motion to access the record, and counsel informed appellant of his right
1
See TEX. PENAL CODE ANN. § 22.01(a)(1), (b); see also TEX. CODE CRIM. PROC.
ANN. art. 42.013; TEX. FAM. CODE ANN. § 71.004.
2
to file a response. See Kelly v. State, 436 S.W.3d 313, 319 (Tex. Crim. App. 2014)
(citations omitted); In re Schulman, 252 S.W.3d 403, 408 (Tex. Crim. App. 2008).
Appellant has not filed a response to his counsel’s Anders brief.
We have independently reviewed the entire record in this appeal, and conclude
that no reversible error exists in the record, there are no arguable grounds for review,
and the appeal is frivolous. See Anders, 386 U.S. at 744 (emphasizing that reviewing
court—and not counsel—determines, after full examination of proceedings, whether
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) (same); Mitchell,
193 S.W.3d at 155 (reviewing court determines whether arguable grounds exist by
reviewing entire record). We note that 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.
We affirm the judgment of the trial court and grant counsel’s motion to
withdraw.2 Attorney Nicholas Mensch must immediately send appellant the
required notice and file a copy of the notice with the Clerk of this Court. See TEX.
R. APP. P. 6.5(c).
2
Appointed counsel still has a duty to inform appellant of the result of this appeal
and that he may, on his own, pursue discretionary review in the Texas Court of
Criminal Appeals. See Ex Parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997).
3
PER CURIAM
Panel consists of Chief Justice Radack and Justices Goodman and Countiss.
Do not publish. TEX. R. APP. P. 47.2(b).
4