Marco Antonio Melendez v. State ( 2006 )

Opinion issued May 4, 2006

In The

Court of Appeals

For The

First District of Texas

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NO. 01-03-00858-CR

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MARCO ANTONIO MELENDEZ, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 351st District Court

Harris County, Texas

Trial Court Cause No. 933216

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MEMORANDUM OPINION

          Marco A. Melendez has filed a motion for rehearing of our opinion issued on August 31, 2005. A response was requested and received from the State. After due consideration, we grant rehearing, withdraw our opinion and judgment of August 31, 2005, and issue the following opinion and judgment in their stead.

          Appellant, Marco A. Melendez, pleaded guilty to the felony offense of felon in possession of a weapon. See Tex. Pen. Code Ann. § 46.04 (Vernon 2004). Pursuant to a plea agreement, the trial court assessed appellant’s punishment at confinement for ten years in prison. The trial court certified appellant’s right to appeal rulings on matters raised by written motion filed and ruled on before trial. See Tex. R. App. P. 25.2(a)(2).  

          Appellant’s counsel, who was appointed to represent appellant for this appeal, submitted a brief stating his professional opinion that the appeal was without merit and that there were no arguable grounds for reversal on appeal. See Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1396, 1400 (1967). Appellant filed a pro se response brief that asserts eight issues on appeal, in which he complains of errors that concern pretrial, trial, and posttrial matters. These issues concern (1) whether appellant was deprived of his Fifth Amendment right against double jeopardy, (2) the sufficiency of the evidence to convict appellant of felon in possession of a weapon, (3) whether the trial court abused its discretion by denying appellant’s motion to suppress evidence that appellant was in possession of a weapon, (4) whether the trial court abused its discretion by not holding a hearing on appellant’s motion for new trial, (5) whether appellant was denied effective assistance of counsel because his counsel did not file a motion to have his previous conviction declared a misdemeanor offense in lieu of a felony offense, (6) whether the trial court had a duty to withdraw appellant’s guilty plea sua sponte, (7) whether appellant was denied effective assistance of counsel because the trial court did not timely appoint counsel and because counsel did not assist appellant in filing a motion for new trial, and (8) appellant’s proposed waiver of Anders briefing requirements. We affirm appellant’s conviction.

Background

          On February 13, 2002, an undercover police officer employed by the Houston Police Department (HPD) observed appellant and Luis Olvera conducting what appeared to be narcotics transactions with several people who approached them as they stood in the parking lot outside two bars. The undercover officer also observed Olvera put what appeared to be crack cocaine into his mouth when a marked police car drove near the parking lot. When the bar closed at 2 a.m., the undercover officer saw both appellant and Olvera enter the bar and leave with an opened beer bottle. The two men then got into appellant’s car. As appellant backed out of the parking lot, the undercover officer saw the passenger, Olvera, take a drink from the beer bottle.

          The undercover officer relayed his observations to surveillance officers located nearby in a marked patrol car, who stopped appellant’s car near his house. When the officers approached appellant’s car, Olvera, the passenger, dropped the beer bottle to the ground, mumbling as he spoke. Olvera was then instructed to spit out the objects in his mouth, which were impairing his speech. Olvera complied and spat crack rocks from his mouth.

          One of the officers, Officer Miller, ordered appellant to get out of the car. As appellant stepped from the car, the officer placed his hands on appellant to pull him away from the open car door and observed a large piece of crack cocaine on the front seat of the car, where appellant had been sitting. Officer Miller decided to take appellant into custody for possession of the cocaine found near him in the car and told appellant to turn around and place his hands on the car. Officer Miller’s search of appellant revealed a handgun in the right pocket of his jacket.

          During the hearing on the motion to suppress, appellant and Olvera testified that, after they drank beer inside the bar that night, appellant gave Olvera a ride in appellant’s car. They claimed that appellant began to take Olvera home, but that they changed their plans and ended up at appellant’s house, which was less than one block from the bar. Each testified that police officers did not approach them in the car until 20 to 25 minutes after they had left the bar, that the officers approached the car with their guns drawn, and that one of the officers choked Olvera. Appellant testified that no sale of narcotics occurred outside the bar that night, and that he was not aware that Olvera possessed any cocaine. Appellant also said that he possessed neither narcotics, nor any firearm on his person or in his car.   

          The trial court certified appellant’s right to appeal only the trial court’s rulings on matters raised by written motion filed and ruled on before trial, pursuant to the Rules of Appellate Procedure, which state that in a plea-bargained case, as here, an appellant may appeal only “those matters that were raised by written motion filed and ruled on before trial” or “after getting the trial court’s permission to appeal.” Tex. R. App. P. 25.2(a)(2); Estrada v. State, 149 S.W.3d 280, 282 (Tex. App.—Houston [1st Dist.] 2004, pet. ref’d).   

Anders Procedure

          The brief submitted by appellant’s court-appointed counsel states his professional opinion that there are no arguable grounds for reversal on appeal and that any appeal would, therefore, lack merit. See Anders, 386 U.S. at 744, 87 S. Ct. at 1400. Counsel’s brief meets the minimum Anders requirements by presenting a professional evaluation of the record and stating why there are no arguable grounds for reversal on appeal. See Gainous v. State, 436 S.W.2d 137, 138 (Tex. Crim. App. 1969). Appellant’s counsel sent a copy of the brief to appellant, requested permission to withdraw from the case, and notified appellant of his right to review the record and file a pro se response. The State initially waived its opportunity to file an appellee’s brief to reply to the arguments presented in appellant’s pro se response, but later, upon our request, filed a responsive brief to appellant’s motion for rehearing.  

          When this Court receives an Anders brief from a defendant’s court-appointed attorney who asserts that no arguable grounds for appeal exist, we must determine that issue independently by conducting our own review of the entire record. 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 case is “wholly frivolous”); Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991) (quoting same passage from Anders). In conducting our review, we consider any pro se response that the defendant files to his appointed counsel’s Anders brief. See Bledsoe v. State, 178 S.W.3d 824, 826–28 (Tex. Crim. App. 2005).

          Our role in this Anders appeal, which includes a pro se response by appellant, is limited to determining whether arguable grounds for appeal exist. Bledsoe, 178 S.W.3d at 827. If we determine that arguable grounds for appeal exist, we must abate the appeal and remand the case to the trial court to allow the court-appointed attorney to withdraw. See id. The trial court must then either appoint another attorney to present all arguable grounds for appeal or, if the defendant wishes, allow the defendant to proceed pro se. See id. We do not rule on the ultimate merits of the issues raised by appellant in his pro se response. Id. If we determine that there are arguable grounds for appeal, appellant is entitled to have new counsel address the merits of the issues raised. Id. “Only after the issues have been briefed by new counsel may [we] address the merits of the issues raised.” Id.

          If, on the other hand, we determine, from our independent review of the entire record, that the appeal is wholly frivolous, we may affirm the trial court’s judgment by issuing an opinion in which we explain that we have reviewed the record and have found no reversible error. See id. at 826–28. The holding that there are no arguable grounds for appeal is subject to challenge by an appellant by a petition for discretionary review filed in the Court of Criminal Appeals. Id. at 827 & n.6.

          In accordance with Anders, 386 U.S. at 744–45, 87 S. Ct. at 1400, and Bledsoe, 178 S.W.3d at 826–28, we have reviewed the record, appellant’s appointed counsel’s Anders brief, and appellant’s pro se response to that brief and conclude that no reversible error exists. Having reached that conclusion, we affirm the judgment of the trial court and grant appellant’s appointed counsel’s motion to withdraw.

Conclusion

          We affirm the judgment of the trial court and grant appointed counsel’s motion to withdraw.

                                                                                  Elsa Alcala

                                                                                  Justice

Panel consists of Justices Taft, Alcala, and Higley.

Do not publish. Tex. R. App. P. 47.2(b).