Jesus Guadalupe Trevino v. State ( 2004 )

    NUMBER 13-03-007-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

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  JESUS GUADALUPE TREVINO,                                                 Appellant,

v.

THE STATE OF TEXAS,                                                                Appellee.  

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    On appeal from the 105th District Court

of Kleberg County, Texas.

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  M E M O R A N D U M O P I N I O N

     Before Chief Justice Valdez and Justices Hinojosa and Castillo

  Opinion by Chief Justice Valdez

          Appellant, Jesus Guadalupe Trevino, pled guilty to unauthorized use of a motor vehicle. The trial court found appellant guilty and sentenced him to two years confinement in a state jail facility. This appeal is from that conviction and sentence. We conclude the appeal is frivolous and without merit and affirm the judgment of the trial court.

I. FACTS

         As this is a memorandum opinion and the parties are familiar with the facts, we will not recite them here except as necessary to advise the parties of the Court’s decision and the basic reasons for it. See Tex. R. App. P. 47.4.

II. ANDERS BRIEF

         On January 22, 2003, appellant’s appellate counsel filed a brief with this Court in which he concluded, after careful investigation, the appeal is frivolous and without merit. See Anders v. California, 386 U.S. 738, 744 (1967). The brief presents a professional evaluation showing why there is no basis to advance an appeal. See Stafford v. State, 813 S.W.2d 503, 509-10, 510 n.3 (Tex. Crim. App. 1991). Although counsel states appellant could possibly argue on appeal that the trial court abused its discretion in denying his application for community supervision, with citation to relevant legal authority and the record, counsel professionally evaluates the evidence presented and concludes he cannot in good faith raise the issue. We conclude counsel’s brief meets the requirements of Anders. See Anders, 386 U.S. at 744-45; High v. State, 573 S.W.2d 807, 812-13 (Tex. Crim. App. [Panel Op.] 1978).

         However, counsel’s brief did not show that counsel had informed appellant that he had the right to: (1) file a pro se brief and (2) review the record to determine what points to raise in a pro se brief. See McMahon v. State, 529 S.W.2d 771, 772 (Tex. Crim. App. 1975); Johnson v. State, 885 S.W.2d 641, 646 (Tex. App.–Waco 1994, pet. ref’d) (per curiam). On June 28, 2004, we abated this appeal to allow counsel to notify appellant of his right to review the record and file a pro se brief and to allow appellant an opportunity to file a pro se brief if he so desired. We also ordered counsel to provide this Court with a copy of his notification to appellant. On July 1, 2004, counsel filed a copy of his letter to appellant complying with our order. Appellant has not filed a pro se brief.

III. 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); Ybarra v. State, 93 S.W.3d 922, 926 (Tex. App.–Corpus Christi 2002, no pet.). The record shows that appellant pled guilty without the benefit of a plea-bargain agreement. The record also contains "Defendant's Waiver of Rights" signed by appellant. This written waiver contains the following paragraph initialed by appellant:

Waiver of Appeal: I understand that, whether I plead guilty or nolo contendere with or without a plea bargain agreement, I may have a limited right to appeal. I hereby waive any right of appeal that I may have to the judgment of the Court.

         Appellant did not waive his right to appeal after sentencing, nor did he bargain for a sentencing recommendation in exchange for the waiver. See Ex parte Thomas, 545 S.W.2d 469, 470 (Tex. Crim. App. 1977) (pre-sentencing waiver of right of appeal invalid because it could not be made knowingly, voluntarily, or intelligently). Moreover, the trial court certified that appellant has the right of appeal, which is consistent with a determination that the "boiler-plate" language in appellant's plea papers is not a valid waiver of his right of appeal. The trial court also appointed appellate counsel and ordered the reporter to prepare the record at no cost to appellant. Accordingly, we conclude appellant's written waiver of his right to appeal is not valid. See Perez v. State, 129 S.W.3d 282, 287-88 (Tex. App.–Corpus Christi 2004, no pet.) (finding waiver of right to appeal invalid where appellant did not waive after sentencing or bargain for sentence recommendation and trial court certified appellant had right of appeal, appointed appellate counsel, and provided appellant with copy of record).

         Because appellant pleaded not guilty to the offense, he waived his right to appeal any nonjurisdictional error, other than the voluntariness of his plea, that occurred before entry of the plea where the judgment of guilt was rendered independent of, and is not supported by, the error. Young v. State, 8 S.W.3d 656, 667 (Tex. Crim. App. 2000). Thus, our independent review of the record is limited to: (1) potential jurisdictional defects; (2) the voluntariness of appellant's plea; (3) error that is not independent of and supports the judgment of guilty; and (4) potential error occurring after the guilty plea. Perez, 129 S.W.3d at 288.

         The record shows no arguable errors falling within any of these four categories. First, the trial court had jurisdiction over this case. See Tex. Code Crim. Proc. Ann. § 4.05 (Vernon 2003). Second, appellant’s plea was knowingly and voluntarily made. The trial court properly admonished appellant before he pleaded guilty, emphasized the risk involved in pleading guilty without the benefit of a plea-bargain agreement, and inquired repeatedly into the voluntariness of the plea before accepting appellant’s plea. Appellant testified the plea was voluntarily made. Third, the judgment was entered independently of any error occurring before the entry of the plea. The State introduced sufficient evidence to support the conviction, including appellant’s judicial confession and a police report. Fourth, we found no appealable error occurring after the entry of the plea. Appellant’s sentence was within the range authorized by law for the offense of unauthorized use of a motor vehicle. See Tex. Pen. Code Ann. § 31.07(b) (Vernon 2003) (unauthorized use of motor vehicle is state jail felony), § 12.35(a) (Vernon 2003) (range of punishment for state jail felony is 180 days to two years confinement). Appellant waived any other challenge to his sentence by failing to object to his sentence in the trial court. See Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996); Perez, 129 S.W.3d at 290.

         We have reviewed the entire record and find that the appeal is wholly frivolous. See Stafford, 813 S.W.2d at 50. Accordingly, we affirm the judgment of the trial court.

IV. MOTION TO WITHDRAW

         In his Anders brief, counsel requests leave to withdraw from further representation of appellant on this appeal. We grant counsel’s motion to withdraw. 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). We order counsel to notify appellant of the disposition of his appeal and the availability of discretionary review. See Ex parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997) (per curiam).   

                                                                        Rogelio Valdez,

                                                                        Chief Justice

Do not publish.

Tex. R. App. P. 47.2(b).  

Memorandum Opinion delivered and filed

this 7^th day of October, 2004.