Juan Mariscal v. State ( 2014 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-12-00529-CR
JUAN ANTONIO MARISCAL, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 110th District Court
Floyd County, Texas
Trial Court No. 4465, Honorable William P. Smith, Presiding
April 17, 2014
MEMORANDUM OPINION
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
Appellant Juan Antonio Mariscal appeals from the judgment revoking his
community supervision and sentencing him to six years’ confinement in prison.
According to the terms of a plea bargain agreement, on March 24, 2011,
appellant plead guilty to driving while intoxicated, enhanced, and was sentenced to six
years’ confinement in prison probated to four years’ community supervision. 1 On July
1
See TEX. PENAL CODE ANN. §§ 49.04 & 49.09(b)(2) (West Supp. 2013) (defining
offense and level of enhancement). As enhanced, the offense is a third degree felony
14, 2012, appellant was arrested and charged with driving while intoxicated. A blood
sample analysis revealed a blood alcohol level of 0.185 grams of alcohol per 100
milliliters of blood.
On September 6, 2012, the State moved to revoke appellant’s community
supervision, alleging seven grounds. At the hearing on the motion, appellant plead true
to all but one ground for revocation. After receiving evidence, the trial court revoked
appellant’s community supervision and sentenced him as noted.
A motion for new trial was apparently overruled by operation of law and this
appeal followed. Appellant’s retained appellate counsel was allowed to withdraw from
representation after he asserted in a motion filed under appellate rule 6.5 that the case
presented no non-frivolous grounds for appeal.
Appellant retained replacement counsel who subsequently filed a motion to
withdraw and an Anders2 brief asserting the case presented no non-frivolous grounds.
We granted replacement counsel’s motion to withdraw and afforded appellant the
opportunity to respond to replacement counsel’s brief, either through new counsel or pro
se. Appellant filed no response and has not otherwise communicated with the court.
In his brief, replacement counsel states he reviewed the record and found no
non-frivolous ground for appeal. The brief discusses the procedural history of the case
as well as the proceedings at the revocation hearing. Counsel also briefly discusses
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punishable by imprisonment for any term of not more than ten years or less than 2
years and a fine not to exceed $10,000. TEX. PENAL CODE ANN. § 12.34 (West 2011).
2
See Anders v. California, 386 U.S. 738, 744-45, 87 S. Ct. 1396, 18 L. Ed. 2d 493
(1967).
2
potential appellate issues but concludes none have merit. Counsel indicates that he
served appellant with a copy of the motion to withdraw. Johnson v. State, 885 S.W.2d
641, 645 (Tex. App.—Waco 1994, pet. refused).
“The procedural safeguards of Anders and its progeny do not apply to retained
attorneys and we do not have the same supervisory role in guaranteeing the attorney’s
representation.” Nguyen v. State, 11 S.W.3d 376, 379 (Tex. App.—Houston [14th Dist.]
2000, no pet.) (citing Oldham v. State, 894 S.W.2d 561, 562 (Tex. App.—Waco 1995,
order)). “This is so because by securing retained counsel, the appellant has received all
that Anders was designed to ensure.” Lopez v. State, 283 S.W.3d 479, 480 (Tex.
App.—Texarkana 2009, no pet.). Rather, when retained counsel concludes an appeal
lacks merit, counsel has the obligation to inform the client of this conclusion and refuse
to prosecute the appeal. Mays v. State, 904 S.W.2d 920, 923 n.1 (Tex. App.—Fort
Worth 1995, no pet.) (citing Johnson v. State, 885 S.W.2d 641, 645 (Tex. App.—Waco
1994, no pet.) and McCoy v. Court of Appeals of Wisconsin, Dist. 1, 486 U.S. 429, 437,
108 S. Ct. 1895, 1901, 100 L. Ed. 2d 440, 452 (1988)). Retained counsel is not required
to support a motion to withdraw with an Anders brief.
While Anders is inapplicable here, we have nevertheless conducted an
independent review of the appellate record to determine whether the representation
regarding the frivolousness of the appeal was accurate. See generally Lopez, 283
S.W.3d at 481; Torres v. State, 271 S.W.3d 872, 874 (Tex. App.—Amarillo 2008, no
pet.). We have found no error arguably warranting reversal.
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Accordingly, we affirm the judgment of the trial court.
James T. Campbell
Justice
Do not publish.
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