Joe Perez Martinez v. the State of Texas ( 2024 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-24-00204-CR
JOE PEREZ MARTINEZ, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the Hall District Court
100th County, Texas
Trial Court No. 3905, Honorable Dale Rabe, Jr., Presiding
September 18, 2024
MEMORANDUM OPINION
Before PARKER and DOSS and YARBROUGH, JJ.
Pending before this Court is a motion to withdraw supported by a brief filed
pursuant to Anders v. California.1 Pursuant to a plea of guilty, Appellant, Joe Perez
Martinez, was placed on deferred adjudication community supervision for five years for
aggravated assault with a deadly weapon, enhanced by a prior felony.2 Less than two
1 Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967).
2 TEX. PENAL CODE ANN. §§ 22.02(a)(2), 12.42(b).
years later, the State moved to adjudicate guilt based on numerous violations of the
conditions of community supervision. At a hearing on the State’s motion, Appellant
pleaded true to some but not all of the allegations of violations.3 After hearing testimony
from Appellant’s supervision officer, Appellant, and several character witnesses, the trial
court found Appellant violated the conditions of community supervision, adjudicated him
guilty of the original offense, found the enhancement allegation to be true, and assessed
a sentence of forty years.
In support of her motion to withdraw, counsel certifies she has conducted a
conscientious examination of the record, and in her opinion, it reflects no potentially
plausible basis for reversal of Appellant’s conviction. Anders v. California, 386 U.S. 738,
744–45, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967); In re Schulman, 252 S.W.3d 403, 406
(Tex. Crim. App. 2008). Counsel candidly discusses why, under the controlling
authorities, the record supports that conclusion. See High v. State, 573 S.W.2d 807, 813
(Tex. Crim. App. 1978). Counsel has demonstrated she has complied with the
requirements of Anders and In re Schulman by (1) providing a copy of the brief to
Appellant, (2) notifying him of the right to file a pro se response if he desired to do so, and
(3) informing him of the right to file a pro se petition for discretionary review. In re
Schulman, 252 S.W.3d at 408.4 By letter, this Court granted Appellant an opportunity to
3 Given Appellant’s pleas of true, the State waived the allegations to which he pleaded not true.
4 Notwithstanding that Appellant was informed of his right to file a pro se petition for discretionary
review upon execution of the Trial Court’s Certification of Defendant’s Right of Appeal, counsel must comply
with Rule 48.4 of the Texas Rules of Appellate Procedure which provides that counsel shall within five days
after this opinion is handed down, send Appellant a copy of the opinion and judgment together with
notification of his right to file a pro se petition for discretionary review. Id. at 408 n.22, 411. The duty to
send the client a copy of this Court’s decision is an informational one, not a representational one. It is
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exercise his right to file a response to counsel’s brief, should he be so inclined. Id. at 409
n.23. He filed a contentious response proclaiming his innocence and complaining of “dirty
cops” and “evil” district attorney and judge breaking laws and violating his rights. He also
complains of ineffective assistance of counsel. The State did not favor us with a brief.
ANALYSIS
Appellant’s pleas of true alone support the trial court’s order. Moses v. State, 590
S.W.2d 469, 470 (Tex. Crim. App. 1979). The original charge against Appellant, a second
degree felony, was enhanced to punishment for a first degree felony. The forty-year
sentence is within the statutory range. Winchester v. State, 246 S.W.3d 386, 388 (Tex.
App.—Amarillo 2008, pet. ref’d).
When we have an Anders brief by counsel and a pro se response by an appellant,
we have two choices. We may determine that the appeal is wholly frivolous and issue an
opinion explaining that we have reviewed the record and find no reversible error; Bledsoe
v. State, 178 S.W.3d 824, 826–27 (Tex. Crim. App. 2005) (citing Anders, 386 U.S. at
744), or we 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 issues. Bledsoe, 178
S.W.3d at 826–27 (citing Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991)).
We too have independently examined the record to determine whether there are
any non-frivolous issues which might support this appeal. See Penson v. Ohio, 488 U.S.
75, 80, 109 S. Ct. 346, 102 L. Ed. 2d 300 (1988); In re Schulman, 252 S.W.3d at 409;
ministerial in nature, does not involve legal advice, and exists after the court of appeals has granted
counsel’s motion to withdraw. Id. at 411 n.33.
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Stafford, 813 S.W.2d at 511. We have found no such issues. See Gainous v. State, 436
S.W.2d 137, 138 (Tex. Crim. App. 1969). After reviewing the record, counsel’s brief, and
Appellant’s pro se response, we agree there is no plausible basis for reversal of
Appellant’s conviction. See Bledsoe, 178 S.W.3d at 826–27.
CONCLUSION
The trial court’s judgment is affirmed and counsel’s motion to withdraw is granted.
Alex Yarbrough
Justice
Do not publish.
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