Raul Franco v. State ( 2015 )

NUMBER 13-14-00140-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
RAUL FRANCO, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 105th District Court
of Nueces County, Texas.
MEMORANDUM OPINION
Before Justices Garza, Benavides, and Perkes
Memorandum Opinion by Justice Garza
Appellant, Raul Franco, entered an “open” plea of guilty to continuous violence
against the family, a third-degree felony offense. See TEX. PENAL CODE ANN. § 25.11 (a),
(e) (West, Westlaw through 2013 3d C.S.). Appellant also pleaded “true” to a prior felony
offense, which enhanced the offense to a second-degree felony. See id. § 12.42(a)
(West, Westlaw through 2013 3d C.S.). The trial court assessed punishment at ten years’
imprisonment. See id. § 12.33 (West, Westlaw through 2013 3d C.S.). We affirm.
I. ANDERS BRIEF
Franco’s appellate counsel has filed a motion to withdraw and a brief in support
thereof in which he states that he has diligently reviewed the entire record and has found
no non-frivolous issues. See Anders v. California, 386 U.S. 738 (1967); High v. State,
573 S.W.2d 807, 813 (Tex. Crim. App. [Panel Op.] 1978). Counsel’s brief meets the
requirements of Anders as it presents a thorough, professional evaluation showing why
there are no arguable grounds for advancing an appeal. See In re Schulman, 252 S.W.3d
403, 407 n.9 (Tex. Crim. App. 2008) (orig. proceeding) (“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.”); Stafford v. State, 813 S.W.2d 503, 510 n.3 (Tex. Crim. App. 1991) (en
banc).
In compliance with Kelly v. State, 436 S.W.3d 313, 319 (Tex. Crim. App. 2014),
counsel has carefully discussed why, under controlling authority, there is no reversible
error in the trial court's judgment. Counsel has informed this Court that he has (1) notified
appellant that he has filed an Anders brief and a motion to withdraw; (2) provided
appellant with copies of both pleadings; (3) informed appellant of his rights to file a pro se
response,1 to review the record preparatory to filing that response, and to seek review if
we conclude that the appeal is frivolous; and (4) supplied appellant with a form motion for
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.)).
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pro se access to the appellate record. See Anders, 386 U.S. at 744; Kelly, 436 S.W.3d
at 319–20. More than an adequate time has passed, and appellant has filed neither a
motion for pro se access to the record nor a pro se response.
II. INDEPENDENT REVIEW
Upon receiving an Anders brief, we must conduct a full examination of all the
proceedings to determine whether the appeal is wholly frivolous. Penson v. Ohio, 488
U.S. 75, 80 (1988). We have reviewed the record and counsel’s brief and we have found
no reversible error. 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 it considered the
issues raised in the brief and reviewed the record for reversible error but found none, the
court of appeals met the requirements of Texas Rule of Appellate Procedure 47.1.”);
Stafford, 813 S.W.2d at 509. Accordingly, we affirm the judgment of the trial court.
III. MOTION TO WITHDRAW
In accordance with Anders, appellant’s appellate counsel has filed a motion to
withdraw. See Anders, 386 U.S. at 744; 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 the motion to withdraw.
We order counsel to send a copy of the opinion and judgment to appellant and to
advise him of his right to file a petition for discretionary review, within five days of the date
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of this opinion.2 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).
DORI CONTRERAS GARZA,
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
21st day of May, 2015.
2 No substitute counsel will be appointed. Should appellant wish to seek further review by the
Texas Court of Criminal Appeals, he must either retain an attorney to file a petition for discretionary review
or file a pro se petition for discretionary review. Any petition for discretionary review must be filed within
thirty days from the date of either this opinion or the last timely motion for rehearing that was overruled by
this Court. See TEX. R. APP. P. 68.2. Any petition for discretionary review must be filed with the clerk of the
Texas Court of Criminal Appeals, see TEX. R. APP. P. 68.3(a), and must comply with the requirements of
Rule 68.4 of the Texas Rules of Appellate Procedure. See TEX. R. APP. P. 68.4.
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