Andrew Longoria v. State ( 2012 )


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  • Opinion issued December 13, 2012
    In The
    Court of Appeals
    For The
    First District of Texas
    ————————————
    NO. 01-12-00197-CR
    ———————————
    ANDREW LONGORIA, Appellant
    V.
    THE STATE OF TEXAS, Appellee
    On Appeal from the 262nd District Court
    Harris County, Texas
    Trial Court Cause No. 1303224
    MEMORANDUM OPINION
    Appellant Andrew Longoria pleaded guilty, pursuant to an agreed
    recommendation from the State regarding punishment, to the second-degree-felony
    offense of assault of a family member, “Second Offender and Impeding
    Breathing.” See TEX. PENAL CODE ANN. § 22.01(b–1) (West 2011). In accordance
    with appellant’s agreement with the State, the trial court deferred adjudication of
    appellant’s guilt and placed him on community supervision for five years and
    assessed a $500 fine. The State subsequently moved for adjudication, alleging that
    appellant had violated the conditions of his community supervision by committing
    a new offense; failing to maintain suitable employment during the months of July
    and August 2011; failing to establish and pay child support; failing to perform
    community service as ordered; failing to pay certain fees, fines, and costs; and
    making false statements to a Harris County employee. Appellant pleaded “not
    true” to the allegations. The trial court found the allegations true, found appellant
    guilty of the underlying offense, and assessed punishment of confinement for
    fifteen years and a $500 fine. Appellant timely filed a notice of appeal.
    Appellant’s appointed appellate counsel has filed a motion to withdraw,
    along with an Anders brief stating that the record presents no reversible error and
    that, therefore, the appeal is frivolous. See Anders v. California, 
    386 U.S. 738
    , 
    87 S. Ct. 1396
    (1967). We grant counsel’s motion to withdraw and affirm the trial
    court’s judgment.
    An attorney has an ethical obligation to refuse to prosecute a frivolous
    appeal. In re Schulman, 
    252 S.W.3d 403
    , 407 (Tex. Crim. App. 2008). If an
    appointed attorney finds a case to be wholly frivolous, her obligation to her client
    is to seek leave to withdraw. 
    Id. Counsel’s obligation
    to the appellate court is to
    2
    assure it, through an Anders brief, that, after a complete review of the record, the
    request to withdraw is well-founded. 
    Id. Counsel’s brief
    meets the Anders requirements by presenting a professional
    evaluation of the record. See 
    id. Counsel discusses
    the evidence adduced, supplies
    us with references to the record, and provides us with citation to legal authorities.
    See 
    id. at 411;
    High v. State, 
    573 S.W.2d 807
    , 812 (Tex. Crim. App. 1978).
    Counsel indicates that she has thoroughly reviewed the record and is unable to
    advance any grounds of error that warrant reversal. See 
    Anders, 386 U.S. at 744
    ,
    87 S. Ct. at 1400; 
    Schulman, 252 S.W.3d at 406
    –07; Mitchell v. State, 
    193 S.W.3d 153
    , 155 (Tex. App.—Houston [1st Dist.] 2006, no pet.).
    The brief also reflects that counsel delivered a copy of the brief to appellant
    and informed him of his right to examine the record and to file a response. See
    
    Schulman, 252 S.W.3d at 408
    . More than 30 days have passed, and appellant has
    not filed a pro se response. See 
    id. at 409
    n.23 (adopting 30-day period for
    response). The State waived its opportunity to file an appellee’s brief.
    We have independently reviewed the record, and we conclude that no
    reversible error exists, that there are no arguable grounds for review, and that the
    appeal is frivolous. See 
    id. at 407
    n.12 (explaining that appeal is frivolous when it
    does not present argument that could “conceivably persuade the court”); Bledsoe v.
    State, 
    178 S.W.3d 824
    , 826–27 (Tex. Crim. App. 2005) (emphasizing that
    3
    reviewing court—and not counsel—determines, after full examination of
    proceedings, whether the appeal is wholly frivolous). Although we may issue an
    opinion explaining why the appeal lacks arguable merit, we are not required to do
    so. See Garner v. State, 
    300 S.W.3d 763
    , 767 (Tex. Crim. App. 2009).                 An
    appellant may challenge a holding that there are no arguable grounds for appeal by
    filing a petition for discretionary review in the Court of Criminal Appeals. See
    
    Bledsoe, 178 S.W.3d at 827
    & n.6.
    We grant counsel’s motion to withdraw1 and affirm the trial court’s
    judgment. Attorney Melissa Martin must immediately send the notice required by
    Texas Rule of Appellate Procedure 6.5(c) and file a copy of that notice with the
    Clerk of this Court. See TEX. R. APP. P. 6.5(c). We dismiss any other pending
    motions as moot.
    PER CURIAM
    Panel consists of Justices Jennings, Higley, and Sharp.
    Do not publish. TEX. R. APP. P. 47.2(b).
    1
    Appointed counsel still has a duty to inform appellant of the result of this appeal
    and that he may, on his own, pursue discretionary review in the Texas Court of
    Criminal Appeals. See Bledsoe v. State, 
    178 S.W.3d 824
    , 826–27 (Tex. Crim.
    App. 2005).
    4
    

Document Info

Docket Number: 01-12-00197-CR

Filed Date: 12/13/2012

Precedential Status: Precedential

Modified Date: 10/16/2015