Juan Martinez, III v. State ( 2014 )

IN THE
TENTH COURT OF APPEALS
No. 10-13-00107-CR
JUAN MARTINEZ, III,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 19th District Court
McLennan County, Texas
Trial Court No. 2012-1034-C1
MEMORANDUM OPINION
Appellant, Juan Martinez III, appeals from his convictions for robbery and
harassment of a public servant. See TEX. PENAL CODE ANN. §§ 15.01, 22.11, 29.02 (West
2011). Because appellant had previously been convicted of felony indecency with a
child by exposure, the convictions in this case were enhanced to first-degree and
second-degree felonies, respectively. See id. § 12.42(a)-(b) (West Supp. 2013); see also id. §
22.11(b), 29.02(b). At the conclusion of the evidence, appellant received a sentence of
life imprisonment in the Institutional Division of the Texas Department of Criminal
Justice for the robbery conviction and a twenty-year sentence for the harassment-of-a-
public-servant conviction. The trial court ordered that the imposed sentences run
concurrently and subsequently certified appellant’s right of appeal. This appeal
followed.
I. ANDERS BRIEF
Pursuant to Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1396, 1400, 18 L. Ed. 2d
493 (1967), appellant’s court-appointed appellate counsel filed a brief and a motion to
withdraw with this Court, stating that his review of the record yielded no grounds of
error upon which an appeal can be predicated. Counsel’s brief meets the requirements
of Anders as it presents a professional evaluation demonstrating why there are no
arguable grounds to advance on appeal. See In re Schulman, 252 S.W.3d 403, 407 n.9
(Tex. Crim. App. 2008) (“In Texas, an Anders brief need not specifically advance
‘arguable’ points of error if counsel finds none, but it must provide record references to
the facts and procedural history and set out pertinent legal authorities.”) (citing Hawkins
v. State, 112 S.W.3d 340, 343-44 (Tex. App.—Corpus Christi 2003, no pet.)); Stafford v.
State, 813 S.W.2d 503, 510 n.3 (Tex. Crim. App. 1991) (en banc).
In compliance with High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel
Op.] 1978), appellant’s counsel has carefully discussed why, under controlling
authority, there are no reversible errors in the trial court’s judgment. Counsel has
informed this Court that he has: (1) examined the record and found no arguable
grounds to advance on appeal; (2) served a copy of the brief and counsel’s motion to
withdraw on appellant; and (3) informed appellant of his right to review the record and
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to file a pro se response.1 See Anders, 386 U.S. at 744, 87 S. Ct. at 1400; Stafford, 813
S.W.2d at 510 n.3; see also In re Schulman, 252 S.W.3d at 409 n.23.2 Appellant has filed a
pro se response to counsel’s motion to withdraw and corresponding Anders brief.3
II. 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, 109 S. Ct. 346, 349-50, 102 L. Ed. 2d 300 (1988). We have reviewed the entire
record, counsel’s brief, and appellant’s pro se response and have found nothing that
would arguably support an appeal. See Bledsoe v. State, 178 S.W.3d 824, 827-28 (Tex.
Crim. App. 2005) (“Due to the nature of Anders briefs, by indicating in the opinion that
it considered the issues raised in the briefs and reviewed the record for reversible error
but found none, the court of appeals met the requirement of Texas Rule of Appellate
1 The Texas Court of Criminal Appeals has held that “‘the pro se response need not comply with
the rules of appellate procedure in order to be considered. Rather, the response should identify for the
court those issues which the indigent appellant believes the court should consider in deciding whether
the case presents any meritorious issues.’” In re Schulman, 252 S.W.3d 403, 409 n.23 (Tex. Crim. App.
2008) (quoting Wilson v. State, 955 S.W.2d 693, 696-97 (Tex. App.—Waco 1997, no pet.)).
2 Appellant’s appointed attorney complied with all the requirement in Anders cases, as
announced prior to Kelly v. State. See generally No. PD-0702-13, ___ S.W.3d. ___, 2014 Tex. Crim. App.
LEXIS 911 (Tex. Crim. App. June 25, 2014). He did not have the benefit of Kelly at the time the motion to
withdraw and the Anders brief were filed. He did, however, notify the defendant of his right to obtain
and review the record and to file a response to the motion to withdraw and Anders brief. Appellant filed
a lengthy, comprehensive response, wherein he cited to the record. Based on the notice provided by
counsel and the response filed by appellant, we find it unnecessary to require appointed counsel or this
Court to take any additional steps or procedures, as discussed in Kelly. We note that appellant makes no
complaint, request, or suggestion that causes this Court to question whether the record was made
available to him for his review, if he desired to have it.
3 Appellant’s pro se response contains a number of procedural deficiencies, including a faulty
certificate of service. Specifically, in his certificate of service, appellant indicates that he has served his
pro se response on this Court, rather than the opposing party, the McLennan County District Attorney.
See TEX. R. APP. P. 9.5(a) (requiring service “on all parties to the proceeding”). Because of our disposition
and to expedite this appeal, we will implement Rule 2 and suspend the requirements of Rule 9.5. See id.
at R. 2.
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Procedure 47.1.”); Stafford, 813 S.W.2d at 509. Accordingly, the judgments of the trial
court are affirmed.
III. MOTION TO WITHDRAW
In accordance with Anders, appellant’s attorney has asked this Court for
permission to withdraw as counsel for appellant. See Anders, 386 U.S. at 744, 87 S. Ct. at
1400; see also In re Schulman, 252 S.W.3d at 408 n.17 (citing Jeffery v. State, 903 S.W.2d 776,
779-80 (Tex. App.—Dallas 1995, no pet.) (“If an attorney believes the appeal is frivolous,
he must withdraw from representing the appellant. To withdraw from representation,
the appointed attorney must file a motion to withdraw accompanied by a brief showing
the appellate court that the appeal is frivolous.”) (citations omitted)). We grant
counsel’s motion to withdraw. Within five days of the date of this Court’s opinion,
counsel is ordered to send a copy of this opinion and this Court’s judgment to appellant
and to advise him of his right to file a petition for discretionary review.4 See TEX. R. APP.
P. 48.4; see also In re Schulman, 252 S.W.3d at 412 n.35; Ex parte Owens, 206 S.W.3d 670,
673 (Tex. Crim. App. 2006).
4 No substitute counsel will be appointed. Should appellant wish to seek further review of this
case by the Texas Court of Criminal Appeals, he must either retain an attorney to file a petition for
discretionary review or must file a pro se petition for discretionary review. Any petition for discretionary
review must be filed within thirty days from the date of this opinion or the last timely motion for
rehearing or timely motion for en banc reconsideration was overruled by this Court. See TEX. R. APP. P.
68.2. Any petition and all copies of the petition for discretionary review must be filed with the Clerk of
the Court of Criminal Appeals. See id. at R. 68.3. Any petition for discretionary review should comply
with the requirements of rule 68.4 of the Texas Rules of Appellate Procedure. See id. at R. 68.4; see also In
re Schulman, 252 S.W.3d at 409 n.22.
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AL SCOGGINS
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed September 18, 2014
Do not publish
[CR25]
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