Sam Sendejo v. State ( 2014 )

NUMBER 13-13-00687-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
SAM SENDEJO, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 105th District Court
of Kleberg County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Longoria
Memorandum Opinion by Chief Justice Valdez
Appellant, Sam Sendejo, was indicted for possession of cocaine, less than four
grams, a third-degree felony. See TEX. HEALTH & SAFETY CODE ANN. § 481.115 (West,
Westlaw through 2013 3d C.S.). On January 12, 2005, appellant pleaded guilty to the
offense. The trial court sentenced appellant to three years’ confinement, probated for
three years, and assessed a $2,500 fine. Following a motion to revoke filed by the State
on August 5, 2007, the trial court extended the term of appellant’s probation until January
11, 2015. On May 16, 2013, the State filed its third motion to revoke alleging that
appellant had committed six violations of his community supervision. The trial court
conducted a hearing on the motion on June 3, 2013, at which appellant pleaded true to
the allegations of consumption of alcohol, failure to pay supervision fees, and failure to
pay attorneys’ fees. Appellant pleaded not true to the allegations of criminal mischief,
theft, and criminal trespass. After considering evidence, the trial court found the
allegations of criminal mischief and theft true. The trial court revoked appellant’s
community supervision and assessed his punishment at the original sentence of three
years’ confinement.
Concluding that there are no errors that would result in the reversal of the judgment
of the trial court, appellant’s counsel filed an Anders brief in which he reviewed the merits,
or lack thereof, of the appeal. We affirm.
I. ANDERS BRIEF
Pursuant to Anders v. California, 386 U.S. 738, 744 (1967), appellant’s appellate
counsel has filed a motion to withdraw and a brief with this Court stating that he has found
no reversible error committed by the trial court and no arguable ground of error upon
which an appeal can be predicated. 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, 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.”) (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).
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In compliance with High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel
Op.] 1978), appellant’s counsel has explained why, under controlling authority, there are
no reversible errors in the trial court’s judgment. In his Anders brief, counsel noted that
he specifically considered “whether Sendejo’s plea of true and the evidence presented
were sufficient to support the revocation of his probation and reasonable sentence.”
Counsel has informed this Court that he has complied with the requirements of Anders
by (1) examining the record and applicable law and finding no arguable grounds to
advance on appeal, (2) serving a copy of the brief and motion to withdraw as counsel on
appellant, and (3) informing appellant of his right to review the record and to file a pro se
response raising any ground of error or complaint which he may desire.1 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 an adequate period of time has passed, and appellant has not
filed a pro se response with this Court. See In re Schulman, 252 S.W.3d at 409 n. 23.
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 and counsel’s Anders brief, and we
have found nothing that would arguably support an appeal. See Bledsoe v. State, 178
S.W.3d 824, 826–28 (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
1 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.)).
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Texas Rule of Appellate Procedure 47.1.”); Stafford, 813 S.W.2d at 509. There is no
reversible error in the record. Accordingly, we affirm.
III. MOTION TO WITHDRAW
In accordance with Anders, appellant’s attorney has asked this Court for
permission to withdraw as counsel. 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, 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. Within five days of the date of this Court’s opinion, counsel is ordered
to send a copy of the opinion and judgment to appellant and advise him of his right to file
a petition for discretionary review.2 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).
/s/ Rogelio Valdez
ROGELIO VALDEZ
Chief Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
26th day of June, 2014.
2 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 Texas Court of Criminal Appeals. See id. 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. R. 68.4.
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