Juan Manuel Alfaro v. State ( 2016 )

NUMBER 13-15-00075-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
JUAN MANUEL ALFARO, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 389th District Court of
Hidalgo County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Garza and Longoria
Memorandum Opinion by Justice Longoria
Appellant Juan Manuel Alfaro appeals his conviction for one count of aggravated
robbery. See TEX. PENAL CODE ANN. § 29.03(a), (b) (West, Westlaw through 2015 R.S.).
We affirm.
I. BACKGROUND
In September of 2014, the State charged appellant by indictment with one count
of aggravated robbery, a first-degree felony. See id. The State alleged in the indictment
that while in the course of committing the offense of robbery, appellant caused bodily
injury to Ranulfo Dantes Mar and used or exhibited a deadly weapon.
Appellant initially pled not guilty and rejected several plea offers from the State.
However, appellant announced at the beginning of the trial on the merits that he was
pleading guilty. The jury was instructed by the court to return a verdict of guilty and assess
punishment. See State v. Aguilera, 165 S.W.3d 695, 698 n.6 (Tex. Crim. App. 2005)
(“We note that we have held that a plea of guilty to the court results in a unitary trial.”).
The jury returned a verdict of guilty as they were instructed and assessed punishment at
fifty years’ imprisonment in the Institutional Division of the Texas Department of Criminal
Justice and a $10,000 fine.
This appeal followed. As discussed below, appellant’s court-appointed counsel
has filed a motion to withdraw accompanied by an Anders brief. See Anders v. California,
386 U.S. 738, 744 (1967).
II. ANDERS BRIEF
Pursuant to Anders v. California, appellant’s court-appointed appellate counsel
has 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. See id.
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
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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) and Kelly v. State, 436 S.W.3d 313, 319 (Tex. Crim. App. 2014), appellant’s
counsel carefully discussed why, under controlling authority, there is no reversible error
in the trial court's judgment.1 Counsel has informed this Court, in writing, that counsel
has: (1) notified the appellant that counsel has filed an Anders brief and a motion to
withdraw; (2) informed the appellant of his rights to file a pro se response,2 review the
record preparatory to filing that response, and seek discretionary review if the Court
concludes that the appeal is frivolous; and (3) provided the appellant with a form motion
for pro se access to the appellate record, lacking only the appellant’s signature and the
date and including the mailing address for the court of appeals, with instructions to file the
motion within ten days. See Anders, 386 U.S. at 744; Kelly, 436 S.W.3d at 319; Stafford,
813 S.W.2d at 510 n.3; see also In re Schulman, 252 S.W.3d at 409 n.23.
Appellant filed a motion for pro se access to the appellate record and a motion for
extension of time to file his response. We granted the motion with an order dated January
20, 2016 that provided that his pro se response was due thirty days after the record was
1 Appellant’s counsel informed us that he specifically considered whether: (1) the trial court’s denial
of appellant’s motion to suppress his statements was an abuse of discretion; (2) the trial court erred by
refusing to instruct the jury pursuant to article 38.23 of the Texas Code of Criminal Procedure; and (3)
sufficient evidence supported his conviction. Counsel concluded that none of these issues were
meritorious.
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)
(quoting Wilson v. State, 955 S.W.2d 693, 696–97 (Tex. App.—Waco 1997, no pet.)).
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provided to him. Appellant received the record on February 2, 2016.3 The Court granted
appellant four additional thirty-day extensions, but denied his fifth motion for extension of
time because it was substantively identical to his previous motions and gave no new
explanation for the delay. Appellant has not filed a pro se response with the Court to
date. The State informed the Court by letter that it does not intend to file a brief in this
case.
III. INDEPENDENT REVIEW
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 v. State, 178 S.W.3d
824, 827–28 (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. We have found no reversible
error in the record.
IV. MOTION TO WITHDRAW
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.) (“[I]f an attorney believes the appeal is frivolous, he
3 The District Clerk’s office informed the Court that it never received a receipt for the clerk’s record.
However, an employee of the District Clerk called the prison mailroom and confirmed that appellant
received the clerk’s record on the same date that he received the reporter’s record: February 2, 2016.
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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. 4 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).
V. CONCLUSION
We affirm the trial court’s judgment.
Nora L. Longoria
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
21st day of July, 2016.
4 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. Any petition for
discretionary review must be filed with the clerk of the Court of Criminal Appeals and should comply with
the requirements of Texas Rule of Appellate Procedure 68.4. See TEX. R. APP. P. 68.3, 68.4.
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