David M. Davila v. State ( 2004 )

    NUMBER 13-02-566-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

---

  DAVID M. DAVILA                                                                        Appellant,

v.

THE STATE OF TEXAS,                                                                Appellee.  

---

    On appeal from the 36th District Court

of San Patricio County, Texas.

---

  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

  Memorandum Opinion by Chief Justice Valdez

           A jury found appellant, David Davila, guilty of possession of a controlled substance. The trial court assessed punishment at two years confinement, suspended the sentence, and placed appellant on community supervision for five years. 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 December 2, 2002, appellant’s 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 factual sufficiency could be raised, with citation to relevant legal authority and the record, counsel professionally evaluates the evidence presented at trial and concludes the evidence was sufficient to support the conviction. 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 24, 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 June 29, 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 2003, no pet.). We have reviewed the entire record and find that the appeal is wholly frivolous. See Stafford, 813 S.W.2d at 509. Accordingly, we affirm the judgment of the trial court.

IV. MOTION TO WITHDRAW

         Counsel has requested to withdraw from further representation of appellant on this appeal. An appellate court may grant counsel’s motion to withdraw filed in connection with an Anders brief. 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 grant counsel’s motion to withdraw and order him 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 27^th day of August, 2004.