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 2006-07

Jose Ovalle v. State ( 2006 )


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                                  NUMBER 13-05-283-CR

     

                             COURT OF APPEALS

     

                         THIRTEENTH DISTRICT OF TEXAS

     

                             CORPUS CHRISTI - EDINBURG 

     

    JOSE OVALLE,                                                                      Appellant,

     

    v.

     

    THE STATE OF TEXAS,                                                                 Appellee.

    On appeal from the 347th District Court of Nueces County, Texas.

    MEMORANDUM OPINION

     

                             Before Justices Hinojosa, Yañez, and Garza

                                Memorandum Opinion by Justice Yañez

     

    On October 28, 2002, appellant, Jose Ovalle, pleaded guilty to the offense of indecency with a child.[1]  The trial court deferred adjudication and placed appellant on community supervision for five years.  On February 24, 2005, the State filed an amended motion to revoke community supervision. At a hearing which began on April 7, 2005, appellant pleaded Atrue@ to most of the State=s allegations and Anot true@ to several allegations.[2]  Pursuant to a plea bargain agreement, the trial court found all of the State=s allegations Atrue,@ adjudicated appellant guilty, revoked his community supervision, and sentenced him to twenty years= imprisonment in the Institutional Division of the Texas Department of Criminal Justice.  Appellant=s counsel has filed a brief with this Court asserting there is no basis for appeal.[3]  We agree, and affirm the trial court=s judgment.

    Anders Brief

    According to counsel=s brief, he has reviewed the clerk=s record and reporter=s record and has concluded that appellant=s appeal is frivolous and without merit.[4]  The brief meets the requirements of Anders as it presents a professional evaluation showing why there are no arguable grounds for advancing an appeal.[5]  In compliance with High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. 1978), counsel has carefully discussed why, under controlling authority, there are no errors in the trial court=s judgment. In the brief, appellant=s counsel states that he has informed appellant of his right to review the appellate record and to file a pro se brief.[6]  No such brief has been filed.

    Upon receiving a Afrivolous appeal@ brief, the appellate courts must conduct Aa full examination of all the proceedings to decide whether the case is wholly frivolous.@[7]  We have carefully reviewed the appellate record and counsel=s brief.  We agree with appellant=s counsel that the appeal is wholly frivolous and without merit.[8]  Accordingly, we affirm the judgment of the trial court.    

                                                    Motion to Withdraw

    In accordance with Anders, counsel has asked permission to withdraw as counsel for appellant.[9]  An appellate court may grant counsel=s motion to withdraw filed in connection with an Anders brief.[10]  We grant counsel=s motion to withdraw.

    We order counsel to advise appellant promptly of the disposition of this case and the availability of discretionary review.[11] 

     

     

                                                                                               LINDA REYNA YAÑEZ,

    Justice

     

     

     

    Do not publish.                     

    Tex. R. App. P. 47.2(b)

     

    Memorandum opinion delivered and

    filed this the 27th day of July, 2006.


    [1] See Tex. Pen. Code Ann.' 21.11 (Vernon 2003).

    [2] Appellant subsequently pleaded guilty to a second offense of indecency with a child, which was the offense at issue in the contested allegations. 

    [3] See Anders v. California, 386 U.S. 738, 744 (1967).

    [4] See id.   

    [5] See Stafford v. State, 813 S.W.2d 503, 510 n.3 (Tex. Crim. App. 1991) (en banc).

    [6] See Sowels v. State, 45 S.W.3d 690, 693 (Tex. App.BWaco 2001, no pet.).

    [7] Penson v. Ohio, 488 U.S. 75, 80 (1988); see Garza v. State, 126 S.W.3d 312, 313 (Tex. App.BCorpus Christi 2004, no pet.). 

    [8] See Bledsoe v. State, 178 S.W.3d 824, 827-28 (Tex. Crim. App. 2005).

    [9] See Anders, 386 U.S. at 744.

    [10] Moore v. State, 466 S.W.2d 289, 291 n.1 (Tex. Crim. App. 1971); see Stafford, 813 S.W.2d at 511 (noting that Anders brief should be filed with request for withdrawal from case). 

    [11] See Ex Parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997).