Leah Olivia Sanchez v. State ( 2013 )

IN THE
TENTH COURT OF APPEALS
No. 10-13-00263-CR
LEAH OLIVIA SANCHEZ,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 52nd District Court
Coryell County, Texas
Trial Court No. FAM-09-19900
MEMORANDUM OPINION
Appellant, Leah Olivia Sanchez, was charged by indictment with aggravated
assault with a deadly weapon-family violence, a first-degree felony. See TEX. PENAL
CODE ANN. § 22.02(a), (b)(1) (West 2011). Pursuant to an agreement with the State,
appellant pleaded guilty to the lesser-included offense of aggravated assault with a
deadly weapon, a second-degree felony. See id. § 22.02(a)-(b). Appellant was placed on
community supervision for a period of five years with a $1,000 fine.
On November 5, 2010, the State filed its first motion to revoke appellant’s
community supervision and adjudicate guilt, alleging eight violations of the terms and
conditions of her community supervision. As a result of the alleged violations, the
terms and conditions of appellant’s community supervision were amended to include,
among other things, a provision requiring appellant to serve thirty days in the Coryell
County Jail. On October 2, 2012, the terms and conditions of appellant’s community
supervision were amended a second time to require that appellant participate in a
psychological evaluation.
Thereafter, on February 13, 2013, the State filed its second motion to revoke
appellant’s community supervision and adjudicate guilt, asserting seven additional
violations. This time, without the benefit of a plea agreement with the State, appellant
pleaded “true” to several of the allegations contained in the State’s motion and
stipulated to the evidence in support of those allegations. At a hearing on the State’s
motion, the trial court revoked appellant’s community supervision and sentenced her to
six years’ incarceration in the Institutional Division of the Texas Department of
Criminal Justice. Appellant appeals from this judgment, and we affirm.
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 with this Court,
stating that her review of the record yielded no grounds of error upon which an appeal
can be predicated. Accompanying counsel’s brief is a motion to withdraw in this
appellate cause number. Counsel’s brief presents a professional evaluation of the
Sanchez v. State Page 2
record demonstrating why there are no arguable grounds to be advanced in this 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 is no reversible error in the trial court’s judgment. Counsel has
informed this Court that she has: (1) examined the record and found no arguable
grounds to advance in this appeal; (2) served a copy of the brief and counsel’s motion to
withdraw on appellant; and (3) informed appellant of her right to review the record and
to file a pro se response in this appeal.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. More than
an adequate period of time has passed, and appellant has not filed 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 case is wholly frivolous. Penson v. Ohio, 488 U.S.
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.)).
Sanchez v. State Page 3
75, 80, 109 S. Ct. 346, 349-50, 102 L. Ed. 2d 300 (1988). After reviewing the entire record
and counsel’s brief, we have found nothing that would arguably support an appeal in
this matter. 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 Procedure 47.1.”);
Stafford, 813 S.W.2d at 509. Accordingly, the judgment of the trial court is affirmed.
III. MOTION TO WITHDRAW
In accordance with Anders, appellant’s attorney has asked this Court for
permission to withdraw as counsel for appellant in this matter. 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 motions 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 her of her right to file a petition for
discretionary review.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).
2 No substitute counsel will be appointed. Should appellant wish to seek further review of these
cases by the Texas Court of Criminal Appeals, she must either retain an attorney to file petitions for
discretionary review or must file pro se petitions for discretionary review. Any petition for discretionary
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AL SCOGGINS
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed December 5, 2013
Do not publish
[CR25]
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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