Carlos Dominguez Rivera v. State ( 2011 )

NUMBER 13-10-00684-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
CARLOS DOMINGUEZ RIVERA, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 24th District Court
of Calhoun County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Garza
Memorandum Opinion by Justice Rodriguez
Appellant Carlos Dominguez Rivera appeals from his conviction, by a jury, for
assault against a public servant, for which he was sentenced to twelve years'
incarceration. See TEX. PENAL CODE ANN. § 22.01(b)(1) (West Supp. 2010).
Concluding that Rivera'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 appeal. We
affirm.
I. COMPLIANCE WITH ANDERS V. CALIFORNIA
Pursuant to Anders v. California, 386 U.S. 738, 744 (1967), Rivera's
court-appointed appellate counsel has filed a brief with this Court, stating that he has
"diligently searched the [record] . . . and [has] researched the law applicable to the facts
and issues presented" and in his professional opinion, "no reversible error is reflected by
the record." After discussing pre-trial issues, voir dire, the evidence presented at trial,
the jury charge, and one arguable ground of error related to defense counsel's
misstatement of Rivera's eligibility for community supervision, counsel concludes that "no
reasonably arguable factual or evidentiary issue exists in the record which would amount
to reversible error." 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), Rivera's counsel has, thus, 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 record and counsel's brief and motion to withdraw on
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Rivera, and (3) informed Rivera 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 Rivera 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, 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 entire record and counsel's 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 judgment of the trial court.
III. MOTION TO WITHDRAW
In accordance with Anders, Rivera's attorney has asked this Court for permission
to withdraw as counsel for Rivera. 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,
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) (orig.
proceeding) (quoting Wilson v. State, 955 S.W.2d 693, 696-97 (Tex. App.—Waco 1997, no pet.)).
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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 that was carried with the case on June 7, 2011. Within five days of
the date of this Court’s opinion, counsel is ordered to send a copy of the opinion and
judgment to Rivera and to advise Rivera 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).
NELDA V. RODRIGUEZ
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
18th day of August, 2011.
2
No substitute counsel will be appointed. Should Rivera 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 that was
overruled by this Court. See TEX. R. APP. P. 68.2. Any petition for discretionary review must be filed with
this Court, after which it will be forwarded to the Texas Court of Criminal Appeals. See TEX. R. APP. P.
68.3; 68.7. Any petition for discretionary review should comply with the requirements of Rule 68.4 of the
Texas Rules of Appellate Procedure. See TEX. R. APP. P. 68.4.
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