Jason Omar Moreno v. the State of Texas ( 2023 )

NUMBER 13-21-00409-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
JASON OMAR MORENO, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 92nd District Court
of Hidalgo County, Texas.
MEMORANDUM OPINION
Before Justices Tijerina, Silva, and Peña
Memorandum Opinion by Justice Tijerina
Appellant Jason Omar Moreno appeals the trial court’s denial of his motion for
post-conviction DNA testing. See TEX. CODE CRIM. PROC. ANN. arts. 64.01, 64.03
(“Chapter 64”). 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 her 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 she: (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 of his rights to file a pro se response, to review the record prior to filing that
response, 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
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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 has filed a pro se response.
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 that 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 meaningful assistance of counsel. Id.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 record counsel’s brief, and appellant’s pro se
response, 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
requirements of Texas Rule of Appellate Procedure 47.1.”); Stafford, 813 S.W.2d at 511.
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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 at412 n.35; Ex parte Owens, 206 S.W.3d 670, 673 (Tex. Crim. App. 2006).
IV. CONCLUSION
We affirm the trial court’s judgment.2
JAIME TIJERINA
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed on the
3rd day of August, 2023.
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.
2 Because we have concluded that there are no non-frivolous issues, we deny appellant’s motion
requesting appointment of new counsel. See Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim. App.
2005) (providing that only if we determine there are arguable grounds, we will remand the case to the trial
court for appointment of new counsel). For the same reason, we deny appellant’s motion requesting that
we deny appellate counsel’s motion to withdraw. See Anders v. California, 386 U.S. 738, 744 (1967)
(allowing appellate counsel to withdraw when the appeal is frivolous).
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