Michael A. Perez v. the State of Texas ( 2023 )

NUMBER 13-22-00008-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
MICHAEL A. PEREZ, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 2nd 25th District Court
of Gonzales County, Texas.
MEMORANDUM OPINION
Before Justices Benavides, Longoria, and Tijerina
Memorandum Opinion by Justice Longoria
Appellant Michael A. Perez was convicted of possession with intent to deliver
cocaine in an amount of four grams or more but less than 200 grams, a first-degree felony.
See TEX. HEALTH & SAFETY CODE ANN. § 481.112(d). Appellant was sentenced to eighty
years’ imprisonment to be served in the Correctional Institutions Division of the Texas
Department of Criminal Justice. See TEX. PENAL CODE ANN. § 12.32(a). Appellant’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 the trial court’s
judgment.
I. ANDERS BRIEF
Pursuant to Anders v. California, appellant’s court-appointed appellate counsel
filed a brief and a motion to withdraw with this Court, stating that his review of the record
yielded no grounds of reversible error upon which an appeal could 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, 406 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 also informed this Court
in writing that he: (1) notified appellant that counsel has filed an Anders brief and a motion
to withdraw; (2) provided appellant with copies of both pleadings; (3) informed appellant
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of his right to file a pro se response, to review the record prior to filing those responses,
and to seek discretionary review if we conclude that the appeal is frivolous; and
(4) provided appellant with a form motion for pro se access to the appellate record that
only requires appellant’s signature and date with instructions to file the motion within ten
days. 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 408–09.
Appellant filed a motion to abate requesting this Court to “review the trial record
for any errors that may entitle appellant to relief” along with a pro se response to his
appellate counsel’s Anders brief. When appellate counsel files an Anders brief and the
appellant independently files a pro se response, the court of appeals has two choices:
[i]t may determine that the appeal is wholly frivolous and issue an opinion
explaining that it has reviewed the record and finds no reversible error. Or,
it may determine that arguable grounds for appeal exist and remand the
cause to the trial court so that new counsel may be appointed to brief the
issues.
Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim. App. 2005) (internal citations
omitted). We are “not required to review the merits of each claim raised in an Anders brief
or a pro se response.” Id. at 827. Rather, we must merely determine if there are any
arguable grounds for appeal. Id. If we determine there are such arguable grounds, we
must remand for appointment of new counsel. Id. Reviewing the merits raised in a pro se
response would deprive an appellant of the meaningful assistance of counsel. Id.II. INDEPENDENT REVIEW & APPELLANT’S MOTION TO ABATE
Upon receiving an Anders brief, we must conduct a full examination of all the
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proceedings to determine whether the case 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
nothing that would arguably support an appeal. See Bledsoe, 178 S.W.3d 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 requirements of Texas Rule of Appellate Procedure 47.1.”);
Stafford, 813 S.W.2d at 511. Having already independently reviewed the record, we deny
appellant’s motion to abate as moot.
III. MOTION TO WITHDRAW
In accordance with Anders, appellant’s counsel 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. We grant counsel’s motion to withdraw. Within five
days from 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 at411 n.35; Ex parte Owens, 206 S.W.3d 670, 673 (Tex. Crim. App. 2006).
1 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.
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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IV. CONCLUSION
We affirm the trial court’s judgment.
NORA L. LONGORIA
Justice
Do not publish.
TEX. R. APP. P. 47.2 (b).
Delivered and filed on the
29th day of June, 2023.
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