Michael Aguirre v. State ( 2014 )

NUMBER 13-13-00061-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
MICHAEL AGUIRRE, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 214th District Court
of Nueces County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Garza, and Benavides
Memorandum Opinion by Justice Benavides
On January 18, 2013, 2008, a jury convicted appellant Michael Aguirre of
intoxication manslaughter with a vehicle, a second-degree felony, see TEX. PENAL CODE
ANN. § 49.08 (West, Westlaw through 2013 3d C.S.), and driving while intoxicated with a
child, a state jail felony. See id. § 49.045 (West, Westlaw through 2013 3d C.S.). The
jury sentenced Aguirre to fifteen years in the Texas Department of Criminal Justice
(TDCJ) Institutional Division for the manslaughter conviction and to two years in the
TDCJ State Jail Division for the driving-while-intoxicated conviction. See id. § 12.33
(West, Westlaw through 2013 3d C.S.) (setting forth punishment for a second-degree
felony as “any term of not more than 20 years or less than 2 years”); § 12.35 (West,
Westlaw through 2013 3d C.S.) (establishing the range of punishment for state jail
felonies as “not more than two years or less than 180 days”). The sentences were
ordered to run concurrently. Aguirre timely filed a notice of appeal on January 25, 2013.
After conducting a diligent review of the case record, Aguirre’s appellate counsel
concluded that no meritorious grounds for appeal existed and that an appeal in this case
would be frivolous in nature. Thus, Aguirre’s appellate counsel filed an Anders brief in
which he reviewed the merits, or lack thereof, of the appeal. We affirm.
I. DISCUSSION
Pursuant to Anders v. California, 386 U.S. 738, 744 (1967), appellant’s
court-appointed appellate counsel has filed a brief with this Court, stating that his review
of the record yielded no grounds or error upon which an appeal can be predicated.
Although counsel’s brief does not advance any arguable grounds of error, it does present
a professional evaluation of the record demonstrating why there are no arguable
grounds to be advanced 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.
2
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 are no errors in the trial court's judgment. Counsel has informed this Court 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)
informed appellant of his right to review the record and to file a pro se response within
thirty days.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 Aguirre has not filed a pro se response. See In Re Schulman, 252 S.W.3d
at 409.
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 brief, and 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 Texas Rule of Appellate Procedure 47.1.”); Stafford, 813 S.W.2d at 509.
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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Accordingly, we affirm the judgment of the trial court.
III. MOTION TO WITHDRAW
In accordance with Anders, appellant’s attorney has asked this Court for
permission to withdraw as counsel for appellant. 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.) (noting that “[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. All other pending motions will be denied as moot.
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 to advise appellant of his right to file a petition
for discretionary review.2 See TEX. R. APP. P. 48.4.
__________________________
GINA M. BENAVIDES,
Justice
Do not publish.
TEX. R. APP. P. 47.2 (b).
Delivered and filed the
27th 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 with the clerk of the Court of Criminal Appeals. See TEX. R. APP. P. 68.3, 68.7.
Furthermore, any petition for discretionary review should comply with the requirements of Rule 68.3 of the
Texas Rules of Appellate Procedure. See TEX. R. APP. P. 68.3.
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