Edward Guerra v. State ( 2018 )

Opinion issued October 16, 2018
In The
Court of Appeals
For The
First District of Texas
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NO. 01-17-00464-CR
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EDWARD GUERRA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from 230th District Court
Harris County, Texas
Trial Court Cause No. 1526245
MEMORANDUM OPINION
Appellant, Edward Guerra, pleaded guilty to the first-degree felony offense of
aggravated assault with a deadly weapon causing serious bodily injury to a family
member, without an agreed punishment recommendation, pending a pre-sentence
investigation (“PSI”) hearing.1 At the PSI hearing, the trial court found appellant
guilty as charged and assessed his punishment at forty-five years’ confinement. This
sentence is within the applicable sentencing range.2 The trial court certified that this
was not a plea-bargain case, and that appellant had the right of appeal. See TEX. R.
APP. P. 25.2(a)(2). Appellant timely filed a notice of appeal and new counsel was
appointed.
Appellant’s appointed counsel has filed a motion to withdraw, along with an
Anders brief stating that the record presents no reversible error and that, therefore,
the appeal is without merit and is frivolous. See Anders v. California, 386 U.S. 738,
87 S. Ct. 1396 (1967). Counsel’s brief meets the Anders requirements by presenting
a professional evaluation of the record and supplying this Court with references to
the record and legal authority. See id. at 744, 87 S. Ct. at 1400; see also High v.
State, 573 S.W.2d 807, 812 (Tex. Crim. App. 1978). Counsel indicates that he has
thoroughly reviewed the record and that he is unable to advance any grounds of error
that warrant reversal. See Anders, 386 U.S. at 744, 87 S. Ct. at 1400; Mitchell v.
State, 193 S.W.3d 153, 155 (Tex. App.—Houston [1st Dist.] 2006, no pet.).
1
See TEX. PENAL CODE ANN. § 22.02(a), (b)(1) (West 2011).
2
See TEX. PENAL CODE ANN. § 12.32(a) (West 2011).
2
Appellant’s counsel has informed us that he has delivered a copy of the motion
to withdraw and Anders brief to appellant and informed him of his right to file a pro
se response after getting access to the records. See In re Schulman, 252 S.W.3d 403,
408 (Tex. Crim. App. 2008). Furthermore, counsel has certified that he has sent the
form motion for pro se access to the records to appellant for his response. See Kelly
v. State, 436 S.W.3d 313, 322 (Tex. Crim. App. 2014). Appellant filed a pro se
response to his counsel’s Anders brief.
We have independently reviewed the entire record in this appeal, and we
conclude that no reversible error exists in the record, that there are no arguable
grounds for review, and that therefore the appeal is frivolous. See Anders, 386 U.S.
at 744, 87 S. Ct. at 1400 (emphasizing that reviewing court—and not counsel—
determines, after full examination of proceedings, whether the appeal is wholly
frivolous); Garner v. State, 300 S.W.3d 763, 767 (Tex. Crim. App. 2009) (reviewing
court must determine whether arguable grounds for review exist); Bledsoe v. State,
178 S.W.3d 824, 826–27 (Tex. Crim. App. 2005) (reviewing court is not to address
merits of each claim raised in Anders brief or pro se response after determining there
are no arguable grounds for review); Mitchell, 193 S.W.3d at 155. An appellant may
challenge a holding that there are no arguable grounds for appeal by filing a petition
for discretionary review in the Texas Court of Criminal Appeals. See Bledsoe, 178
S.W.3d at 827 & n.6.
3
Accordingly, we affirm the judgment of the trial court and grant counsel’s
motion to withdraw.3 See TEX. R. APP. P. 43.2(a). Attorney Kevin Keating must
immediately send the required notice and file a copy of that notice with the Clerk of
this Court. See TEX. R. APP. P. 6.5(c). We dismiss any other pending motions as
moot.
PER CURIAM
Panel consists of Justices Keyes, Bland, and Lloyd.
Do not publish. TEX. R. APP. P. 47.2(b).
3
Appointed counsel still has a duty to inform appellant of the result of this appeal
and that he may, on his own, pursue discretionary review in the Texas Court of
Criminal Appeals. See Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim. App.
2005).
4