Rodolfo Orozco Duran v. State ( 2012 )

NUMBERS 13-10-00520-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
RODOLFO OROZCO DURAN, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 103rd District Court
of Cameron County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Vela, and Perkes
Memorandum Opinion by Justice Perkes
Appellant, Rodolfo Orozco Duran, appeals his conviction for aggravated assault, a
second-degree felony enhanced to a first-degree felony by a prior felony conviction. See
TEX. PENAL CODE ANN. §§ 22.02(a)(2) & 12.42(b) (West 2011). Following a jury trial,
appellant was found guilty, sentenced to a term of forty years of confinement in the Texas
Department of Criminal Justice, Institutional Division, and fined $10,000.
Appellant timely perfected this appeal and, as discussed below, his court-appointed
counsel filed an Anders brief. We affirm.
I. ANDERS BRIEF
Pursuant to Anders v. California, 386 U.S. 738, 744 (1967), appellant’s
court-appointed appellate counsel filed a brief and a motion to withdraw with this Court,
stating that his review of the record yielded no grounds 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).
In compliance with High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel Op.]
1978), appellant’s counsel carefully discussed why, under controlling authority, there is no
reversible error 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.1 See Anders, 386 U.S. at 744;
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.)).
2
Stafford, 813 S.W.2d at 510 n.3; see also In re Schulman, 252 S.W.3d at 409 n.23.
Appellant has responded by filing a timely pro se brief.
II. INDEPENDENT REVIEW
A court of appeals has two options when an Anders brief and a subsequent pro se
response are filed. After reviewing the entire record, it may: (1) determine that the appeal is
wholly frivolous and issue an opinion explaining that it finds no reversible error; or (2)
determine that there are arguable grounds for appeal and remand the case to the trial court
for appointment of new appellate counsel. Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex.
Crim. App. 2005). If the court finds arguable grounds for appeal, it may not review those
grounds until after new counsel has briefed those issues on appeal. Id.
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 we have found
nothing that would arguably support an appeal. See Bledsoe, 178 S.W.3d at 827–28 (“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. There is no reversible error in the record. Accordingly, the judgment of the trial court
is affirmed.
III. MOTION TO WITHDRAW
In accordance with Anders, appellant’s attorney 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
3
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 this opinion and this
Court’s judgment to appellant and to 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).
Gregory T. Perkes
Justice
Do not publish. TEX. R. APP. P. 47.2(b).
Delivered and filed the
28th day of June, 2012.
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. Effective September 1,
2011, any petition for discretionary review must be filed with the clerk of the Court of Criminal Appeals. See
TEX. R. APP. P. 68.3. Any petition for discretionary review should comply with the requirements of Texas Rule
of Appellate Procedure 68.4. See TEX. R. APP. P. 68.4.
4