Michael Jason Portillo v. State ( 2015 )

IN THE
TENTH COURT OF APPEALS
No. 10-14-00292-CR
MICHAEL JASON PORTILLO,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 54th District Court
McLennan County, Texas
Trial Court No. 2013-53-C2
MEMORANDUM OPINION
Appellant Michael J. Portillo was charged by indictment with burglary of a
habitation and with aggravated robbery. A jury found him guilty on both counts and
assessed twenty-three and ten-year prison sentences, respectively. The judgment on each
count reflects a deadly-weapon finding. This appeal ensued. We will affirm.
In accordance with Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493
(1967), Appellant’s court-appointed appellate counsel filed a brief and motion to
withdraw, 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; 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.”); Stafford v. State, 813 S.W.2d 503, 510 n.3 (Tex. Crim. App.
1991).
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 us 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)
provided Appellant with a copy of the record and informed him of his right to file a pro
se response. See Anders, 386 U.S. at 744, 87 S.Ct. at 1400; Stafford, 813 S.W.2d at 510 n.3;
see also Schulman, 252 S.W.3d at 409 n.23. Appellant did not file a pro se response.
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
and counsel’s brief 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
Portillo v. State Page 2
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.
In accordance with Anders, Appellant’s attorney has asked for permission to
withdraw as counsel for Appellant. See Anders, 386 U.S. at 744, 87 S.Ct. at 1400; see also
Schulman, 252 S.W.3d at 408 n.17 (quoting 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.”)). We grant counsel’s motion to withdraw.
Within five days of the date of this 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.1 See TEX. R. APP. P. 48.4; see also Schulman, 252 S.W.3d
at 412 n.35; Ex parte Owens, 206 S.W.3d 670, 673 (Tex. Crim. App. 2006).
REX D. DAVIS
Justice
1New appellate counsel will not be appointed for Appellant. Should Appellant wish to seek further review
of this case by the 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 from the date 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 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 Schulman, 252 S.W.3d at 409 n.22.
Portillo v. State Page 3
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed May 21, 2015
Do not publish
[CR25]
Portillo v. State Page 4