Michael Cortez v. State ( 2016 )

NUMBER 13-15-00008-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
MICHAEL CORTEZ, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 156th District Court of
Bee County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Garza and Longoria
Memorandum Opinion by Justice Garza
A jury found appellant Michael Cortez guilty of three counts of aggravated assault
with a deadly weapon, a second-degree felony offense enhanced to habitual felony
offender status. See TEX. PENAL CODE ANN. § 22.02(a)(2), (b) (West, Westlaw through
2015 R.S.); id. § 12.42(d) (West, Westlaw through 2015 R.S.). The jury sentenced
appellant to forty-five years’ imprisonment on each count, with the sentences ordered to
run concurrently. See id. § 12.42(d). Appellant’s court-appointed 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, 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
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, 319–20 (Tex. Crim. App. 2014),
appellant’s counsel carefully discussed why, under controlling authority, there is no
reversible error in the trial court's judgment. Counsel has informed this Court, in writing,
that counsel has: (1) notified appellant that counsel has filed an Anders brief and a motion
to withdraw; (2) provided the appellant with copies of both pleadings; (3) informed the
appellant of appellant’s rights to file a pro se response,1 and review the record preparatory
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
2
to filing that response; and (4) provided appellant with a pro se motion for access to the
appellate record. See Anders, 386 U.S. at 744; Kelly, 436 S.W.3d at 319–320, Stafford,
813 S.W.2d at 510 n.3; see also In re Schulman, 252 S.W.3d at 409 n.23. More than an
adequate time has passed, and appellant 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 appeal is wholly frivolous. Penson v. Ohio, 488
U.S. 75, 80 (1988). We have reviewed the record and counsel’s brief, and we have found
no reversible error. 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 it considered the
issues raised in the brief 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.”);
Stafford, 813 S.W.2d at 509. Accordingly, we affirm the judgment of the trial court.
III. 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
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
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.)).
3
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. 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).
DORI CONTRERAS GARZA,
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
9th day of June, 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 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, see id. R. 68.3, and should
comply with the requirements of Texas Rule of Appellate Procedure 68.4. See id. R. 68.4.
4