Ex Parte Randall Bolivar ( 2012 )

NUMBERS 13-11-00128-CR
13-11-00129-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
EX PARTE RANDALL BOLIVAR
On appeal from the 107th District Court
of Cameron County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Benavides, and Perkes
Memorandum Opinion by Justice Rodriguez
Appellant Randall Bolivar challenges the trial court's denial of his pretrial
application for writ of habeas corpus. See TEX. CODE CRIM. PROC. ANN. art. 11.08 (West
2005). Appellate cause number 13-11-00128-CR involves Bolivar's arrest and
indictment for two counts of assault on a public servant; appellate cause number
13-11-00129-CR involves Bolivar's arrest and indictment for murder.1 See TEX. PENAL
CODE ANN. §§ 19.02(b), 22.01(b)(1) (West 2011). Bolivar filed pretrial applications for
writs of habeas corpus as to all counts, alleging that: he was denied counsel at the time
of his arrest; his conditions of incarceration pending trial have amounted to cruel and
unusual punishment; his bail is unconstitutionally excessive; and he has been denied a
speedy trial. See U.S. CONST. amends. V, VI, VIII, XIV. The trial court denied Bolivar's
applications.
Concluding that Bolivar's appeal in this case is without merit and frivolous, counsel
filed an Anders brief in which he reviewed the merits, or lack thereof, of the appeals. We
affirm.
I. COMPLIANCE WITH ANDERS V. CALIFORNIA
Pursuant to Anders v. California, 386 U.S. 738, 744 (1967), Bolivar's
court-appointed appellate counsel has filed a brief with this Court, stating that he has
searched the record and researched the applicable law. In his brief, counsel has
identified six arguable grounds of appeal from the trial court's denial of Bolivar's pretrial
habeas applications. Counsel has clearly concluded that four of the grounds—the
jurisdiction of this Court over the appeal, possible spoliation of evidence, denial of
counsel at the time of arrest, and whether Bolivar's right to speedy trial was
violated—present no reversible error and would be frivolous. Counsel then appears to
conclude that two of the grounds—whether Bolivar's bond is excessive, and whether
Bolivar's pretrial confinement has amounted to cruel and unusual punishment—are
1
These cases have been consolidated for the purposes of this opinion on appeal.
2
arguable grounds for reversal; but because counsel ultimately urges that the appeals are
frivolous and moves to withdraw as counsel for Bolivar, we construe his discussion of the
final two grounds as a conclusion that they are merely arguable. See In re Schulman,
252 S.W.3d 403, 407 n.9 (Tex. Crim. App. 2008) (orig. proceeding) ("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)
(en banc).
In compliance with High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel
Op.] 1978), we conclude that Bolivar's counsel has carefully discussed why, under
controlling authority, there are no errors in the trial court's denial of Bolivar's pretrial
applications for writ of habeas corpus. Counsel has informed this Court that he has: (1)
examined the records and found no arguable grounds to advance in either appeal, (2)
served a copy of the brief and counsel’s motion to withdraw on Bolivar, and (3) informed
Bolivar of his right to review the records and to file a pro se response.2 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. Bolivar filed his pro se response on March 1, 2012, addressing each of the
arguable grounds raised by counsel in his Anders brief. See In re Schulman, 252
S.W.3d at 409.
2
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) (orig.
proceeding) (quoting Wilson v. State, 955 S.W.2d 693, 696-97 (Tex. App.—Waco 1997, no pet.)).
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II. INDEPENDENT REVIEW
Upon receiving an Anders brief, this Court 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 records, counsel's brief, and Bolivar's pro se
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 Texas Rule of Appellate Procedure 47.1."); Stafford, 813 S.W.2d at 509.
Accordingly, we affirm the orders of the trial court.
III. MOTION TO WITHDRAW
In accordance with Anders, Bolivar's attorney has asked this Court for permission
to withdraw as counsel for Bolivar. 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. Within five days of the date of this Court’s opinion, counsel is
ordered to send a copy of the opinion and judgment to Bolivar and to advise Bolivar of his
right to file a petition for discretionary review.3 See TEX. R. APP. P. 48.4; see also In re
3
No substitute counsel will be appointed. Should Bolivar 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
4
Schulman, 252 S.W.3d at 412 n.35; Ex parte Owens, 206 S.W.3d 670, 673 (Tex. Crim.
App. 2006).
NELDA V. RODRIGUEZ
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
14th day of June, 2012.
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 Texas 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.
5