Henry Molina v. State ( 2013 )

NUMBER 13-12-00189-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
HENRY MOLINA, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 347th District Court
of Nueces County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Benavides and Longoria
Memorandum Opinion by Justice Longoria
The State charged appellant Henry Molina by indictment with causing bodily
injury to a child, a third-degree felony enhanced to a second-degree felony by one prior
felony conviction. See TEX. PENAL CODE ANN. §§ 22.04, 12.42(a) (West 2011).
Appellant pleaded not guilty, and the case was tried to a jury. The jury returned a
verdict of guilty. Appellant pleaded “true” to a single enhancement paragraph consisting
of a prior felony conviction for burglary. The jury assessed punishment at five years in
the Texas Department of Criminal Justice—Institutional Division and no fine. This
appeal followed. 1
I. ANDERS BRIEF
Appellant’s court-appointed appellate counsel has filed a brief and motion to
withdraw with this Court pursuant to Anders v. California, 386 U.S. 738, 744 (1967),
stating that his review of the record yielded no grounds of error upon which to base an
appeal. 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, 406 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).
In compliance with High v. State, 507 S.W.2d 807, 813 (Tex. Crim. App. [Panel
Op.] 1978), appellant’s counsel 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) examined the record and found no arguable grounds to advance
1
We twice abated this case to the trial court, first for appointment of new counsel when
appellant’s original counsel did not file a brief, and again on the motion of appellant’s new counsel in
order to locate several items that were omitted from the clerk’s record. See TEX. R. APP. P. 34.5(c).
2
on appeal; 2 (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 to file a pro se
response. 3 See Anders, 386 U.S. at 744; Stafford, 813 S.W.2d at 510 n.3; see also In
re Schulman, 252 S.W.3d at 409 n.23. More than a sufficient amount of time has
passed, and appellant has not responded by filing 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. 75, 80 (1988). We have reviewed the entire record, including counsel’s appellate
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 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.”). Accordingly, we affirm the judgment of the trial court.
III. MOTION TO WITHDRAW
In accordance with Anders, appellant’s attorney requests this Court for
permission to withdraw as counsel for appellant. 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.)) (“[I]f an attorney believes the appeal is frivolous,
2
Counsel informs us that he specifically considered the possibility of advancing three grounds:
(1) a challenge to the sufficiency of the evidence; (2) a challenge to the admission of certain evidence
(the recording of a 911 call); and (3) arguing that appellant’s trial counsel provided constitutionally
deficient representation.
3
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.)).
3
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. Counsel is ordered to send a copy of this opinion and this Court’s
judgment to appellant within five days of the date of this Court’s opinion and to advise
appellant of his right to file a petition for discretionary review with the court of criminal
appeals. 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).
NORA L. LONGORIA
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
30th day of December, 2013.
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 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 or
timely motion for en banc reconsideration 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 Court of Criminal Appeals. See id.
R. 68.3. Any petition for discretion review should comply with the requirements of Texas Rule of
Appellate Procedure 68.4. Id. R. 68.4.
4