Carlos Alberto Ochoa II v. State ( 2019 )

NO. 12-18-00284-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
CARLOS ALBERTO OCHOA, II, § APPEAL FROM THE 241ST
APPELLANT
V. § JUDICIAL DISTRICT COURT
THE STATE OF TEXAS,
APPELLEE § SMITH COUNTY, TEXAS
MEMORANDUM OPINION
PER CURIAM
Carlos Alberto Ochoa, II, appeals his conviction for aggravated assault with a deadly
weapon. Appellant’s counsel filed a brief in compliance with Anders v. California, 386 U.S. 738,
87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), and Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App.
1969). We affirm.
BACKGROUND
Appellant was indicted for the second-degree felony offense of aggravated assault with a
deadly weapon. 1 Appellant made an open plea of “guilty” to the charged offense without a plea
agreement as to punishment. Appellant also signed a written stipulation of evidence establishing
all the elements of the offense, a waiver of his rights to a jury trial and confrontation, and an
acknowledgement of admonishments. The trial court accepted Appellant’s plea and withheld a
finding of guilt until it concluded the punishment hearing. After the punishment hearing, the trial
court found Appellant guilty of the offense, made an affirmative deadly weapon finding, and
sentenced him to twenty years of imprisonment. This appeal followed.
1
See TEX. PENAL CODE ANN. § 22.02(a) (West 2019).
ANALYSIS PURSUANT TO ANDERS V. CALIFORNIA
Appellant’s appellate counsel filed a brief in compliance with Anders v. California and
Gainous v. State. Appellant’s counsel relates that he reviewed the record and found no reversible
error or jurisdictional defect. In compliance with High v. State, 573 S.W.2d 807 (Tex. Crim. App.
[Panel Op.] 1978), counsel’s brief contains a professional evaluation of the record demonstrating
why there are no arguable grounds to be advanced. 2
We considered counsel’s brief and conducted our own independent review of the
record. Id. at 811. We found no reversible error.
CONCLUSION
As required by Anders and Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991),
Appellant’s counsel moved for leave to withdraw. See also In re Schulman, 252 S.W.3d 403, 407
(Tex. Crim. App. 2008) (orig. proceeding). We carried the motion for consideration with the
merits. Having done so, we agree with counsel that the appeal is wholly frivolous. Accordingly,
we grant Appellant’s counsel’s motion for leave to withdraw and affirm the trial court’s judgment.
Appellant’s counsel has a duty to, within five days of the date of this opinion, send a copy of the
opinion and judgment to Appellant and advise him of his right to file a petition for discretionary
review. See TEX. R. APP. P. 48.4; In re Schulman, 252 S.W.3d at 411 n.35. Should Appellant
wish to seek review of this case by the Texas Court of Criminal Appeals, he must either retain an
attorney to file a petition for discretionary review on his behalf or he must file a pro se petition for
discretionary review. Any petition for discretionary review must be filed within thirty days from
either the date of this opinion or the date that the last timely motion for rehearing was overruled
by this Court. See TEX. R. APP. P. 68.2. Any petition for discretionary review must be filed with
the Texas Court of Criminal Appeals. See TEX. R. APP. P. 68.3(a). Any petition for discretionary
2
In compliance with Kelly v. State, Appellant’s counsel provided Appellant with a copy of the brief, notified
Appellant of his motion to withdraw as counsel, informed Appellant of his right to file a pro se response, and took
concrete measures to facilitate Appellant’s review of the appellate record. 436 S.W.3d 313, 319 (Tex. Crim. App.
2014). Appellant subsequently filed a motion for access to the appellate record, along with a motion for an extension
of time to file his pro se brief. We granted both motions. The trial court subsequently filed a letter in this court
certifying that it provided Appellant access to the record. Appellant also signed the letter. Appellant was given time
to file his own brief. The time for filing such a brief has expired and no pro se brief has been filed.
2
review should comply with the requirements of Rule 68.4 of the Texas Rules of Appellate
Procedure. See In re Schulman, 252 S.W.3d at 408 n.22.
Opinion delivered September 11, 2019.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
(DO NOT PUBLISH)
3
COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
SEPTEMBER 11, 2019
NO. 12-18-00284-CR
CARLOS ALBERTO OCHOA, II,
Appellant
V.
THE STATE OF TEXAS,
Appellee
Appeal from the 241st District Court
of Smith County, Texas (Tr.Ct.No. 241-1723-17)
THIS CAUSE came to be heard on the appellate record and brief filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court below
for observance.
By per curiam opinion.
Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J.