Adan Martinez v. State ( 2004 )

  NUMBER 13-02-221-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

ADAN MARTINEZ,                                            Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 105^th District Court

of Nueces County, Texas.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Rodriguez and Castillo

Opinion by Chief Justice Rogelio Valdez

           Appellant, Adan Martinez, was indicted as a repeat felony offender for unlawful possession of methamphetamine and unlawful possession of cocaine. Tex. Health & Safety Code Ann. § 481.115 (Vernon 2003). Appellant elected to be tried by a jury; however, before the jury reached a verdict, appellant reached a plea agreement with the State. The trial court sentenced appellant in accordance with the agreement to eight years imprisonment in the Texas Department of Criminal Justice, Institutional Division. The trial court has certified that this case “is a plea bargain case and the defendant has NO right of appeal.” See Tex. R. App. P. 25.2(a)(2). We conclude that the appeal is frivolous and without merit. We dismiss this appeal.

         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.

Anders Brief

         Appellant’s counsel has filed a brief in which he has concluded that this appeal is wholly frivolous and without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738 (1967), as it presents a professional evaluation regarding why there are no arguable grounds for advancing an appeal. See Stafford v. State, 813 S.W.2d 503, 510 n.3 (Tex. Crim. App. 1991) (citing High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. [Panel Op.] 1978)). Counsel certifies in his brief that he served appellant with a copy of the brief and informed appellant of his right to examine the appellate record and file a pro se brief.

         Pursuant to rule 25.2(d), an appeal must be dismissed if, as in the instant case, a certification showing the right to appeal has not been made part of the record. See Tex. R. App. P. 25.2(d). Nevertheless, the certification showing no right to appeal does not eliminate our duty to perform an independent review of the record upon receipt of an Anders brief. Chavez v. State, Nos. 13-03-174-CR & 13-03-175-CR, 2004 Tex. App. LEXIS 5100, at *3 (Tex. App.–Corpus Christi, June 10, 2004, no pet. h.) (designated for publication); see Penson v. Ohio, 488 U.S. 75, 80 (1988) (upon receipt of “frivolous appeal” brief, appellate courts must conduct “full examination of all the proceeding[s] to decide whether the case is wholly frivolous”) .

Independent Review of the Record

         Pursuant to our independent examination of the record, we find that appellant executed a written waiver of his right to appeal. A voluntary, intelligent, and knowing waiver of appeal, whether negotiated or non-negotiated, prevents a defendant from appealing without the consent of the trial court. Monreal v. State, 99 S.W.3d 615, 622 (Tex. Crim. App. 2003); Escochea v. State, No. 13-01-761-CR, 2004 Tex. App. LEXIS 5366, at *3 (Tex. App.–Corpus Christi, June 17, 2004, no pet. h.). The plea bargain in this case included an agreed recommendation as to punishment that was accepted by the trial court, indicating that appellant bargained for a sentencing recommendation in exchange for the waiver. The trial court expressly denied appellant permission to appeal and certified that he has no right to appeal, which is consistent with a determination that appellant’s written waiver of the right to appeal is valid. Escochea, 2004 Tex. App. LEXIS 5366, at *39-*40. The trial court is in a better position to determine the validity of appellant’s waiver and if there is any arguable merit in his desire to appeal. See id. at *40. We determine that appellant executed a valid waiver of the right to appeal. See id.

         Given that appellant is not appealing from a revocation or adjudication proceeding and that he executed a valid waiver of the right to appeal, we examine the record for jurisdictional defects and to determine the legality of the sentence imposed. See id., 2004 Tex. App. LEXIS 5366, at *32-*33 (discussing scope of independent review). A review of the clerk’s record reveals no arguable jurisdictional defects. Appellant was sentenced to eight years imprisonment, which is within the range authorized by law and is not illegal. See Tex. Health & Safety Act Ann. § 481.115(d) (Vernon 2003) (possession of four or more grams but less than two hundred is second-degree felony); Tex. Pen. Code Ann. § 12.42(b) (Vernon Supp. 2004) (enhancing second-degree felony to first-degree felony where defendant has one prior felony conviction); Tex. Pen. Code Ann. § 12.32 (Vernon 2003) (sentence range for first-degree felony is not less than five years nor more than ninety-nine years).

Pro Se Brief

         In appellant’s pro se brief, he raises two issues regarding ineffective assistance of counsel and alleged jurisdictional defects. In both issues, appellant discusses letters that he had previously submitted to the trial court; however, these documents do not appear in the clerk’s record prepared for appeal.

         With regard to ineffective assistance of counsel, appellant specifically alleges that his trial counsel cooperated with the State to appellant’s detriment, in order to “save the tax-payers time and money,” that counsel did not accept his collect phone calls, and that counsel was not handling the case “to the best of his knowledge.” Appellant waived any appeal based on ineffective assistance of counsel when he pleaded guilty to a felony pursuant to an agreed punishment recommendation. See Escochea, 2004 Tex. App. LEXIS 5366, at *42.  

         In his brief, appellant also argues that his letters to the trial court raise jurisdictional issues, however, appellant fails to specifically state which matters raise a question regarding jurisdiction. Appellant fails to provide a factual summary, record citations, or case law substantiating his argument as to jurisdiction. See Tex. R. App. P. 38.1. As stated previously, we have independently reviewed the record for jurisdictional defects, and our review of the record fails to reveal any arguable jurisdictional issues.   

           We have carefully reviewed the appellate record, counsel’s brief, and appellant’s pro se brief and have found nothing in the record that might arguably support the appeal. We agree that the appeal is without merit. See Stafford, 813 S.W.2d at 511.

Representation on 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 (Tex. Crim. App.1991) (noting that Anders brief should be filed with request for withdrawal from case). Counsel has not requested to withdraw from further representation of appellant on appeal. If counsel wishes to file a motion to withdraw, he must file the motion no later than fifteen days from the date of this opinion. We order counsel to advise appellant promptly of the disposition of this case and the availability of discretionary review. See Ex parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997) (per curiam).

         Accordingly, this appeal is dismissed.  

Rogelio Valdez

                                                                                      Chief Justice

 Do not publish.

TEX. R. APP. P. 47.2(b).

Memorandum Opinion delivered and filed

this 26^th day of August, 2004.