Luis Ernesto Ortega-Zavala v. the State of Texas ( 2023 )

NUMBER 13-22-00397-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
LUIS ERNESTO ORTEGA-ZAVALA, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 2nd 25th District Court
of Gonzales County, Texas.
MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Benavides and Longoria
Memorandum Opinion by Justice Longoria
A jury convicted appellant Luis Ernesto Ortega-Zavala for the offense of
continuous sexual abuse of a child under age fourteen, a first-degree felony, and the trial
court sentenced him to forty-five years’ confinement. See TEX. PENAL CODE ANN.
§§ 21.02(b), (h). 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
of his right 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
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appellant with a form motion for pro se access to the appellate record that only requires
appellant’s signature and the 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. In this case, appellant filed neither a timely motion seeking pro se
access to the appellate record nor a motion for extension of time to do so. Appellant did
not file 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 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 requirements of Texas Rule
of Appellate Procedure 47.1.”); Stafford, 813 S.W.2d at 511.
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
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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.
NORA L. LONGORIA
Justice
Do not publish.
TEX. R. APP. P. 47.2 (b).
Delivered and filed on the
10th 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.
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