Luis Soto v. State ( 2010 )

NUMBER 13-09-146-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
LUIS SOTO, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 148th District Court
of Nueces County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Benavides and Vela
Memorandum Opinion by Justice Vela
Appellant, Luis Soto, was indicted for the criminal offense of possession of a
controlled substance. See TEX . HEALTH & SAFETY CODE ANN . § 481.115(a) (Vernon 2006).
Soto entered into a plea bargain agreement, whereby in exchange for his plea of guilty, he
received a sentence of two years’ confinement in a State Jail Facility, probated for a period
of four years’ deferred adjudication probation and a $1,500.00 fine. On September 10,
2007, the State filed a motion to revoke Soto’s probation, and Soto pleaded true to the
allegations that he violated conditions of his probation. After this plea, the Court entered
a finding of guilt and placed Soto on community supervision for a period of three years.
On January 29, 2009, the State filed a second motion to revoke, and Soto again pleaded
true to allegations that he violated his conditions of probation except for one allegation that
he was behind on costs. After hearing evidence, the trial court found that Soto had
violated his conditions, revoked his probation, and sentenced him to fourteen months in
a State Jail Facility with credit for time served. Concluding that "there are no meritorious
issues for appeal," appellant's counsel filed a brief in which he reviewed the merits, or lack
thereof, of the appeal. We affirm.
I. Compliance with Anders v. California
Appellant's court-appointed counsel filed an Anders brief in which he has concluded
that there are no appealable issues for this Court to consider. See Anders v. California,
386 U.S. 738, 744 (1967). Appellant's brief meets the requirements of Anders. See id. at
744-45; High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. [Panel Op.] 1978); see also
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
2
Christi 2003, no pet.)); Stafford v. State, 813 S.W.2d 503, 510 n.3 (Tex. Crim. App. 1991).
In compliance with Anders, following his review of the Court's file and the transcripts, his
research, and his correspondence with appellant, counsel presented a professional
evaluation of the record including, among other things, a review of grand jury proceedings,
pre-trial motions, research and investigation, competency, sentencing, right to present
evidence during the guilt/innocence and punishment stages, and right to appeal. See
Anders, 386 U.S. at 744; Currie v. State, 516 S.W.2d 684, 684 (Tex. Crim. App. 1974); see
also High, 573 S.W.2d at 812.
Counsel has informed this Court that he has reviewed the appellate record and
concluded there are no arguable grounds for reversal. He has also informed this Court that
he provided appellant with a copy of the transcripts in his case, a copy of the brief, and
notified appellant of his right to review the record and to file a pro se response to counsel's
brief and motion to withdraw within thirty days.1 See 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. Id. at 409; see also Anders, 386 U.S. at 744-45; Stafford, 813 at 509 (Tex.
Crim. App. 1991); High, 573 S.W.2d at 813.
II. Independent Review
The United States Supreme Court advised appellate courts that upon receiving a
"frivolous appeal" brief, they must conduct "a full examination of all the proceedings to
1
The Texas Court of Crim inal Appeals has held that "the pro se response need not com ply 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 m eritorious issues." In re Schulman, 252 S.W .3d 403, 409 n.23 (Tex. Crim . App. 2008) (quoting
W ilson v. State, 955 S.W .2d 693, 696-97 (Tex. App.–W aco 1997, no pet.)).
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decide whether the case is wholly frivolous." Penson v. Ohio, 488 U.S. 75, 80 (1988); see
Ybarra v. State, 93 S.W.3d 922, 926 (Tex. App.–Corpus Christi 2003, no pet.).
Accordingly, we have carefully reviewed the record and have found nothing that would
arguably support an appeal. See Bledsoe v. State, 178 S.W.3d 824, 826 (Tex. Crim. App.
2005); Stafford, 813 S.W.2d at 509. We agree with counsel that the appeal is wholly
frivolous and without merit. 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
requirements of Texas Rule of Appellate Procedure 47.1.").
III. Conclusion
The judgment of the trial court is affirmed. In accordance with Anders, appellant's
attorney has 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 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 his 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 appellant and
to advise appellant of his right to file a petition for discretionary review.2 See TEX . R. APP.
2
No substitute counsel will be appointed. Should appellant wish to seek further review of this case
by the Texas Court of Crim inal Appeals, he m ust 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 m ust be filed within
thirty days from the date of either this opinion or the last tim ely m otion for rehearing that was overruled by this
4
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).
ROSE VELA
Justice
Do not publish.
TEX . R. APP. P. 47.2(b).
Delivered and filed the 29th
day of April, 2010.
court. See T EX . R. A PP . P. 68.2. Any petition for discretionary review m ust be filed with this court, after which
it will be forwarded to the Texas Court of Crim inal Appeals. See T EX . R. A PP . P. 68.3; 68.7. Any petition for
discretionary review should com ply with the requirem ents of Rule 68.4 of the Texas Rules of Appellate
Procedure. See T EX . R. A PP . P. 68.4.
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