Brayan Oliver Melchor v. State ( 2021 )

NUMBER 13-19-00414-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
BRAYAN OLIVER MELCHOR, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 430th District Court
of Hidalgo County, Texas.
MEMORANDUM OPINION
Before Justices Benavides, Longoria, and Tijerina
Memorandum Opinion by Justice Tijerina
Appellant Brayan Oliver Melchor entered an open plea of guilty to five counts of
aggravated robbery, a first-degree felony. See TEX. PENAL CODE ANN. § 29.02. The trial
court sentenced Melchor to twenty-five years’ confinement. This appeal followed.
Melchor’s court-appointed counsel has filed an Anders brief stating that there are no
arguable grounds for appeal. See Anders v. California, 386 U.S. 738, 744 (1967). We
affirm.
I. ANDERS BRIEF
Pursuant to Anders v. California, Melchor’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) (orig. proceeding) (“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),
appellant’s counsel carefully discussed why, under controlling authority, there is no
reversible error in the trial court’s judgment. Appellant’s counsel has also informed this
Court in writing that she has (1) notified appellant that she has filed an Anders brief and
a motion to withdraw; (2) provided him with copies of both pleadings; (3) informed him of
his rights to file a pro se response, to review the record preparatory to filing that response,
and to seek discretionary review in the Texas Court of Criminal Appeals if this Court finds
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that the appeal is frivolous; and (4) provided him with a form motion for pro se access to
the appellate record lacking only appellant’s signature and the date and including the
mailing address for the court of appeals, 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. The trial court provided
appellant with a record of this appeal. An adequate amount of 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 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.
III. MOTION TO WITHDRAW
In accordance with Anders, appellant’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 (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
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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 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. 1 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 judgment.
JAIME TIJERINA
Justice
Do not publish.
TEX. R. APP. P. 47.2 (b).
Delivered and filed on the
21st day of January, 2021.
1 No substitute counsel will be appointed. If appellant seeks 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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