Joe Henry Garcia v. State ( 2016 )

NUMBER 13-16-00003-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
JOE HENRY GARCIA, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 36th District Court
of San Patricio County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Benavides, and Perkes
Memorandum Opinion by Justice Benavides
On February 2, 2015, appellant Joe Henry Garcia pleaded guilty to the offense of
sexual assault of a child, a second degree felony, see TEX. PENAL CODE ANN. § 22.011
(West, Westlaw through 2015 R.S.), and was placed on ten years’ deferred community
supervision. On November 6, 2015, the State filed a motion to revoke probation based
on numerous violations of community supervision conditions, including that Garcia was
found guilty of felony driving while intoxicated, see id. §§ 49.04, 49.09 (West, Westlaw
through 2015 R.S.), and had been sentenced to ten years in prison. Garcia pleaded not
true to the probation violations and requested a hearing before the trial court.
After the hearing, the trial court found five of the six allegations in the State’s motion
to revoke true and revoked Garcia’s community supervision. It sentenced him to twenty
years’ imprisonment in the Texas Department of Criminal Justice—Institutional Division.
Garcia was granted the limited right to appeal. Garcia’s court-appointed appellate
counsel has filed an Anders brief. See Anders v. California, 386 U.S. 738, 744 (1967).
We affirm.
I. ANDERS BRIEF
Pursuant to Anders v. California, Garcia’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 Stafford
v. State, 813 S.W.2d 503, 510 n.3 (Tex. Crim. App. 1991); 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 non, 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.)).
In compliance with High v. State and Kelly v. State, Garcia’s counsel carefully
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discussed why, under controlling authority, there is no reversible error in the trial court’s
judgment. See High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel Op.] 1978);
Kelly v. State, 436 S.W.3d 313, 319–22 (Tex. Crim. App. 2014). Garcia’s appellate
counsel also notified this Court that he: (1) notified Garcia that he has filed an Anders
brief and a motion to withdraw; (2) provided Garcia with copies of both pleadings; (3)
informed Garcia of his rights to file a pro se response, review the record preparatory to
filing that response,1 and seek discretionary review if we concluded that the appeal is
frivolous; (4) provided Garcia with a copy of the appellate record; and (5) informed Garcia
that the pro se response, if any, should identify for the Court those issues which he
believes the Court should consider in deciding whether the case presents any meritorious
issues. See Anders, 386 U.S. at 744; Kelly, 436 S.W.3d at 319–20; Stafford, 813
S.W.2d at 510, n.3; see also In re Schulman, 252 S.W.3d at 409 n.23. A reasonable
amount of time has passed, and Garcia had not filed a pro se response.
II. 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). A court of appeals has two options when an Anders brief and a
subsequent pro se response are filed. After reviewing the entire record, it may: (1)
determine that the appeal is wholly frivolous and issue an opinion explaining that it finds
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 to
case presents any meritorious issues.” In re Schulman, 252 S.W.3d at 409 n.23 (quoting Wilson v. State,
955 S.W.2d 693, 696–97 (Tex. App.—Waco 1997, no pet.)).
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no reversible error; or (2) determine that there are arguable grounds for appeal and
remand the case to the trial court for appointment of new appellate counsel. Bledsoe v.
State, 178 S.W.3d 824, 826–27 (Tex. Crim. App. 2005). If the court finds arguable
grounds for appeal, it may not review those grounds until after new counsel has briefed
those issues on appeal. Id. at 827.
We have reviewed the entire record and counsel’s brief, and we have found
nothing that would arguably support an appeal. See id. 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 requirement of Texas Rule of Appellate Procedure 47.1.”); Stafford, 813 S.W.2d
at 509. There is no reversible error in the record. Accordingly, the judgment of the trial
court is affirmed.
III. MOTION TO WITHDRAW
In accordance with Anders, Garcia’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 Jeffrey 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 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 this Court’s opinion, counsel is ordered to send
a copy of this opinion and this Court’s judgment to Garcia and advise him of his right to
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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).
IV. CONCLUSION
We affirm the judgment of the trial court.
GINA M. BENAVIDES,
Justice
Do not publish.
TEX. R. APP. P. 47.2 (b).
Delivered and filed the
21st day of July, 2016.
2 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 overrule 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, see TEX. R.
APP. P. 68.3, and should comply with the requirements of the Texas Rule of Appellate Procedure 68.4.
See TEX. R. APP. P. 68.4.
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