Jonathan Rivera v. State ( 2014 )

NUMBERS
13-13-00457-CR
13-13-00458-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
JONATHAN RIVERA, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 94th District Court
of Nueces County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Perkes and Longoria
Memorandum Opinion by Chief Justice Valdez
Appellant, Jonathan Rivera, pleaded guilty to the offenses of felony family violence
assault, a third-degree felony, committed on November 9, 2008 (appellate cause number
13-13-00458-CR) and of felony family violence assault, a third-degree felony, committed
on January 22, 2009 (appellate cause number 13-13-00457-CR). In both cause numbers,
the trial court deferred adjudication and placed appellant on community supervision for
seven years.
In both cause numbers, the State filed a motion to revoke alleging that appellant
had violated the terms of his community supervision by committing a new criminal offense
while on probation. Appellant pleaded true to committing a new offense of assault causing
bodily injury to a family member and receiving an eight-year prison term. After hearing
evidence, the trial court found that appellant violated the terms of his community
supervision, revoked appellant’s community supervision, and found him guilty of the
offenses. In each case, the trial court assessed a punishment of two years’ confinement
to run concurrently with each other and to run concurrently with appellant’s other prison
term. Appellant’s appellate counsel, concluding that the appeal in this cause is frivolous,
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 in each appellate cause number and a brief with
this Court stating that he was unable to find any “arguable issues to bring forward for
review.” 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).
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 judgments. Counsel specifically noted that he
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reviewed the following: (1) the sufficiency of the indictment; (2) compliance with the Texas
Code of Criminal Procedure; (3) appellant’s competency; (4) the voluntariness of
appellant’s plea; (5) the legality of appellant’s sentence; (6) the sufficiency of the
evidence; (7) trial counsel’s representation; and (8) the accuracy of the written judgments
“as to sentence and proper application of credit.” Counsel has demonstrated that he has
complied with the requirements of Anders by (1) examining the record 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.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.2 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; however, 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 Texas Rule
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.)).
2On February 26, 2014, we ordered the trial court to provide a copy of the record to appellant, and
we granted appellant’s motion for extension of time to file his pro se response. Appellant’s reply response
was due on May 16, 2014. However, appellant did not file his response by that date.
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of Appellate Procedure 47.1.”); Stafford, 813 S.W.2d at 509. Accordingly, we affirm the
judgments of the trial court.
III. MOTIONS TO WITHDRAW
In accordance with Anders, appellant’s attorney has asked this Court for
permission to withdraw as counsel in both appellate causes. 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.) (“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.”) (citations omitted)). We
grant counsel’s motions to withdraw. Within five days of the date of this Court’s opinion,
counsel is ordered to send a copy of the opinion and judgments to appellant and advise
him of his right to file a petition for discretionary review. 3 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
5th day of June, 2014.
3 No substitute counsel will be appointed. Should appellant wish to seek further review of either
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 in each cause. 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. Effective September 1, 2011, 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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