Ruben Rodriguez Jr v. State ( 2018 )

NUMBER 13-17-00487-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
RUBEN RODRIGUEZ JR., Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 105th District Court
of Kleberg County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Benavides
Memorandum Opinion by Justice Benavides
The State charged appellant Ruben Rodriguez Jr., with possession of a controlled
substance with intent to deliver committed on or within 1000 feet of a school, a first–
degree felony. See TEX. HEALTH & SAFETY CODE ANN. § 481.134 (West, Westlaw through
2017 1st C.S.). Rodriguez pleaded guilty to the lesser included offense of possession of
a controlled substance on August 5, 2015. See id. § 481.112. The trial court imposed
a ten-year sentence of imprisonment but suspended it in favor of community supervision
for ten years.
The State filed a second motion to revoke on June 28, 2017, 1 in which it alleged
that Rodriguez violated the conditions of his supervision by: failing to report for April,
May and June 2017, failing to abide by zero tolerance supervision, and failing to pay
numerous fees totaling over $1600.2
On August 16, 2017, Rodriguez pled true to all the allegations. Rodriguez testified
at the hearing that he did not pay the fees “because I had too many bills to catch up on.”
Rodriguez explained that he is the only source of income for his family which consists of
his girlfriend and his three children ages nine, seven, ten months, and another on the
way. When he was jailed pending the hearing, his family moved in with his parents
because they could not pay their bills with him in jail. Rodriguez did not explain his failure
to report, other than testifying that in April 2017 he arrived late and had to wait. While
he was waiting, he grew concerned that he would be jailed and left.
The trial court revoked his supervision and sentenced him to ten years’
imprisonment in the institutional division of the Texas Department of Criminal Justice.
Rodriguez filed a motion to reconsider his punishment after sentencing that the trial court
1 The first motion to revoke is not in the record, but the parties referenced it during the hearing on
the second motion to revoke. During the previous motion to revoke, he pleaded true to seventeen
allegations which included: not reporting, positive urinalyses, and no community service hours, as well as
failing to attend and complete substance abuse evaluation and treatment.
2 Rodriguez allegedly failed to pay the following fees: 1. contraband storage fee of $110 by March
1, 2017, 2. Drug Analysis fee of $180 by April 1, 2017, 3. time payment fee of $25 by November 27, 2016,
4. supervision fees of $40 monthly beginning November 2016 through June 2017, 5. supervision fees of
$60 monthly for November 2016 through June 2017, 6. Crime Stoppers fee of $50 by January 1, 2017, 7.
PSI fee of $25 due by December 1, 2016, 8. Victim’s Compensation Fee of $100 due by February 1, 2017,
and 9. Urinalysis Testing Fee arrearage of $160 due by May 1, 2017.
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denied. This appeal followed with Rodriguez’s court-appointed appellate counsel
moving to withdraw and filing an Anders brief. See Anders v. California, 386 U.S. 738,
744 (1967). We affirm.
I. ANDERS BRIEF
Pursuant to Anders, Rodriguez’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 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 and Kelly v. State, Rodriguez’s counsel carefully
discussed why, under controlling authority, there is no reversible error in the trial court’s
judgment. See High, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel Op.] 1978); Kelly,
436 S.W.3d 313, 319–22 (Tex. Crim. App. 2014). Rodriguez’s appellate counsel also
informed this Court that he: (1) notified Rodriguez that he has filed an Anders brief and
a motion to withdraw; (2) provided Rodriguez with copies of both pleadings; (3) informed
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Rodriguez of his rights to file a pro se response,3 review the record preparatory to filing
that response, and seek discretionary review if we conclude that the appeal is frivolous;
(4) provided Rodriguez with a form to request a copy of the appellate record; and (5)
informed Rodriguez 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; see
also In re Schulman, 252 S.W.3d at 409 n.23. More than adequate time has passed,
and Rodriguez has 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
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.
3 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.” See In re Schulman, 252 S.W.3d 403, 407 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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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, Rodriguez’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 Rodriguez and advise him of his right
to file a petition for discretionary review. 4 See TEX. R. APP. P. 48.4; see also In re
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 Texas Court of Criminal Appeals, see id
R. 68.3, and should comply with the requirements of the Texas Rule of Appellate Procedure 68.4. See id.
R. 68.4.
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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
2nd day of August, 2018.
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