David Suarez-Rico v. State ( 2019 )

NUMBER 13-18-00590-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
DAVID SUAREZ-RICO, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 18th District Court
of Johnson County, Texas.
MEMORANDUM OPINION
Before Justices Benavides, Hinojosa and Perkes
Memorandum Opinion by Justice Perkes
David Suarez-Rico appeals his conviction of possession of a controlled substance
in the amount of four grams or more and less than 200 grams, a second-degree felony. 1
1 This cause is before this Court on transfer from the Tenth Court of Appeals in Waco pursuant to
a docket-equalization order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. § 73.001.
See TEX. HEALTH & SAFETY CODE ANN. § 481.121; see also TEX. PENAL CODE ANN. § 12.33.
Suarez-Rico received a ten-year sentence of confinement. Suarez-Rico’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, Suarez-Rico’s court-appointed appellate counsel
has filed a brief and a motion to withdraw with this Court, stating that her review of the
record yielded no grounds of reversible 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–Edinburg 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, 319–22 (Tex. Crim. App. 2014), Suarez-
Rico’s counsel carefully discussed why, under controlling authority, there is no reversible
error in the trial court’s judgment. Suarez-Rico’s counsel has also informed this Court
that Suarez-Rico has been (1) notified that counsel has filed an Anders brief and a motion
to withdraw; (2) provided with copies of both pleadings; (3) informed of his rights to file a
pro se response, review the record preparatory to filing that response, and seek
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discretionary review if we conclude that the appeal is frivolous; and (4) provided with a
form motion for pro se access to the appellate record with instructions to file the motion
within ten days. 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. More than an
adequate period of time has passed, and Suarez-Rico has not requested the record or
filed a pro se response. 2
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). 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 affirm the judgment of
the trial court.
III. MOTION TO WITHDRAW
In accordance with Anders, Suarez-Rico’s attorney has asked this Court for
permission to withdraw as counsel. See Anders, 386 U.S. at 744; see also In re
Schulman, 252 S.W.3d at 408 n.17 (“[I]f an attorney believes the appeal is frivolous, he
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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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.” (citing Jeffery v. State, 903 S.W.2d 776, 779–
80 (Tex. App.—Dallas 1995, no pet.) (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 Suarez-Rico and to advise him of his
right to file a petition for discretionary review. 3 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 trial court’s judgement.
GREGORY T. PERKES
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
22nd day of August, 2019.
3 No substitute counsel will be appointed. Should Suarez-Rico 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. A
petition for discretionary review must be filed with the clerk of the Court of Criminal Appeals. See id. R.
68.3. Any petition for discretionary review should comply with the requirements of Texas Rule of Appellate
Procedure 68.4. See id. R. 68.4.
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