Lewis Gonzales v. State ( 2013 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
________________________
No. 07-12-00499-CR
________________________
LEWIS GONZALES, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 137th District Court
Lubbock County, Texas
Trial Court No. 2010-426,703; Honorable John J. McClendon, III, Presiding
December 11, 2013
MEMORANDUM OPINION
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
Following an open plea of guilty, Appellant, Lewis Gonzales, was convicted of
driving while intoxicated, third or more,1 enhanced by prior felony convictions. Following
a punishment hearing, he was sentenced to forty years confinement. In presenting this
1
TEX. PENAL CODE ANN. §§ 49.09(b)(2) and 12.42(d) (West Supp. 2013).
appeal, counsel has filed an Anders2 brief in support of a motion to withdraw. We affirm
and grant counsel=s motion.
In support of his motion to withdraw, counsel certifies he has conducted a
conscientious examination of the record and, in his opinion, the record reflects no
potentially plausible basis to support an appeal. Anders v. California, 386 U.S. 738,
744-45, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967); In re Schulman, 252 S.W.3d 403, 406
(Tex. Crim. App. 2008). Counsel candidly discusses why, under the controlling
authorities, the appeal is frivolous. See High v. State, 573 S.W.2d 807, 813 (Tex. Crim.
App. 1978). Counsel has demonstrated that he has complied with the requirements of
Anders and In re Schulman by (1) providing a copy of the brief to Appellant, (2) notifying
him of his right to file a pro se response if he desired to do so, and (3) informing him of
his right to file a pro se petition for discretionary review. In re Schulman, 252 S.W.3d at
408.3 By letter, this Court granted Appellant an opportunity to exercise his right to file a
response to counsel=s brief, should he be so inclined. Id. at 409 n.23. Appellant did not
file a response to the Anders brief.4 Neither did the State favor us with a brief.
On the night of February 9, 2012, an off-duty police officer driving a marked
patrol vehicle stopped Appellant after observing erratic driving which included abrupt
2
Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967).
3
Notwithstanding that Appellant was informed of his right to file a pro se petition for discretionary
review upon execution of the Trial Court’s Certification of Defendant=s Right of Appeal, counsel must
comply with Rule 48.4 of the Texas Rules of Appellate Procedure which provides that counsel shall within
five days after this opinion is handed down, send Appellant a copy of the opinion and judgment together
with notification of his right to file a pro se petition for discretionary review. In re Schulman, 252 S.W.3d
at 408 n.22 & at 411 n.35. The duty to send the client a copy of the court of appeals’s decision is an
informational one, not a representational one. It is ministerial in nature, does not involve legal advice, and
exists after the court of appeals has granted counsel’s motion to withdraw. Id. at 411 n.33.
4
Appellant did file a letter in which he requested appointment of new counsel. He did not,
however, respond to counsel’s Anders brief.
2
lane changes and multiple collisions with street curbs. Once Appellant was stopped,
the officer approached the driver’s side of the vehicle and noticed an odor of alcohol on
Appellant as well as slurred speech. He had Appellant exit the vehicle and sit on the
curb until a unit on duty could arrive.
Once other officers arrived on the scene, sobriety tests were administered to
Appellant. He did not successfully complete any of the tests and was arrested for
driving while intoxicated.
During the punishment hearing, the State introduced, without objection, twelve
prior convictions of Appellant including two other DWIs, assaults, thefts, criminal
mischief, sexual assault and failure to register as a sex offender. Numerous witnesses
gave accounts of the circumstances leading to the prior convictions. Other witnesses
from the sheriff’s office and detention center testified to Appellant’s defiance to rules
and directives and propensity to incite violence.
The sheriff’s gang coordinator testified Appellant was a member of the Texas
Mexican Mafia gang. He later explained Appellant had separated from the gang and
was providing information to several law enforcement agencies of his own accord. He
believed though, that Appellant had been terminated as an informant.
In an effort to advance a potential issue, counsel questions the severity of
Appellant’s sentence by asserting it is grossly disproportionate and violates the federal
and state constitutional prohibitions against cruel and unusual punishment. In
concluding there is no merit to the issue, counsel notes Appellant’s failure to object to
his sentence at trial or raise it in his motion for new trial waived the issue. See TEX. R.
3
APP. P. 33.1(a)(1); Curry v. State, 910 S.W.2d 490, 497 (Tex. Crim. App. 1995). See
also Castaneda v. State, 135 S.W.3d 719, 723 (Tex. Crim. App. 2003). He also points
out that, even if the issue had been preserved, Appellant’s criminal history
demonstrates his sentence was not grossly disproportionate. See Winchester v. State,
246 S.W.3d 386 (Tex. App.—Amarillo 2008, pet. ref’d).
We have independently examined the entire record to determine whether there
are any non-frivolous issues which might support the appeal. See Penson v. Ohio, 488
U.S. 75, 80, 109 S. Ct. 346, 102 L. Ed. 2d 300 (1988); In re Schulman, 252 S.W.3d at
409; Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991). We have found no
such issues. See Gainous v. State, 436 S.W.2d 137, 138 (Tex. Crim. App. 1969). After
reviewing the record and counsel=s brief, we agree with counsel that there is no
plausible basis for reversal. See Bledsoe v. State, 178 S.W.3d 824, 827-28 (Tex. Crim.
App. 2005).
CONCLUSION
The trial court’s judgment is affirmed and counsel's motion to withdraw is
granted.
Patrick A. Pirtle
Justice
Do not publish.
4