Jimmy Gonzales A/K/A Jimmy Gonzales Jr. v. State

NUMBER 13-18-00193-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
JIMMY GONZALES A/K/A
JIMMY GONZALES JR., Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 329th District Court
of Wharton County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Contreras, and Benavides
Memorandum Opinion by Justice Rodriguez
Appellant Jimmy Gonzales a/k/a Jimmy Gonzales, Jr. appeals from his conviction
for continuous sexual assault of a child. See TEX. PENAL CODE ANN. § 21.02 (West,
Westlaw through 2017 1st C.S.). A jury found Gonzales guilty of the offense. Upon the
recommendation of the jury, the trial court sentenced Gonzales to twenty-five years’
imprisonment in the Texas Department of Criminal Justice-Institutional Division.
Determining that there are no errors warranting reversal, counsel filed an Anders
brief in which he reviewed the merits, or lack thereof, of the appeal. We affirm the
judgment of the trial court.
I. COMPLIANCE WITH ANDERS
Pursuant to Anders v. California, Gonzales’s counsel filed a brief stating that, after
a thorough review of the record, he “is unable to find any errors which he, in good faith,
can urge warranting a reversal of this conviction.” See 386 U.S. 738, 744–45 (1967).
Counsel’s brief meets the requirements of Anders as it presents a professional evaluation
showing why there are no non-frivolous grounds for advancing an 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 2003, no pet.)); Stafford v. State, 813 S.W.2d 503, 510 n.3 (Tex.
Crim. App. 1991) (en banc).
In compliance with High v. State, Gonzales’s counsel has discussed why, under
controlling authority, an appeal from the judgment and sentence is without merit and
frivolous because the record reflects no reversible error. See 573 S.W.2d 807, 813 (Tex.
Crim. App. [Panel Op.] 1978). Counsel has demonstrated that he has complied with the
requirements of Anders by (1) examining the record and finding no arguable grounds to
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advance on appeal; (2) notifying Gonzales that counsel has filed an Anders brief; (3)
providing Gonzales with a copy of his motion to withdraw and the Anders’ brief filed in
support of the motion; (4) providing Gonzales with a complete copy of the appellate
record; (5) informing Gonzales of his right to review the record, to file a pro se response,
and to seek discretionary review if the court of appeals concludes that the appeal is
frivolous; and (6) providing Gonzales with a form motion for pro se access to the appellate
record, lacking only Gonzales’s signature and including the mailing address for this
Court.1 See Anders, 386 U.S. at 744; Stafford, 813 S.W.2d at 510 n.3; see also In re
Schulman, 252 S.W.3d at 409 n.23. More than an adequate time has passed, and
Gonzales has not filed a pro se response. See In re Schulman, 252 S.W.3d at 409.
II. INDEPENDENT REVIEW
Upon receiving an Anders brief, this Court must conduct a full examination of all
proceedings to determine whether the case is wholly frivolous. Penson v. Ohio, 488 U.S.
75, 80 (1988). We have reviewed the entire record, counsel’s motion to withdraw, and
the appellate brief, and we have found nothing that would arguably support an appeal.
See Bledsoe v. State, 178 S.W.3d 824, 826–28 (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
1 The Texas Court of Criminal Appeals has held that “the pro se response need not comply with
the rules of appellate procedure in order to be considered. Rather, the response should identify for the
court those issues which the indigent appellant believes the court should consider in deciding whether the
case presents any meritorious issues.” In re Schulman, 252 S.W.3d 403, 409 n.23 (Tex. Crim. App. 2008)
(orig. proceeding) (quoting Wilson v. State, 955 S.W.2d 693, 696-97 (Tex. App.—Waco 1997, no pet.)).
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at 509. We affirm the judgment.
III. MOTION TO WITHDRAW
In accordance with Anders, counsel has filed a motion to withdraw. 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.) (“If an attorney believes the
appeal is frivolous, he must 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 that was carried with the case on August 30, 2018.
Within five days of the date of this Court’s opinion, counsel is ordered to send a copy of
the opinion and judgment to Gonzales and to advise Gonzales of his right to pursue a
petition for review.2 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).
NELDA V. RODRIGUEZ
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the 29th
day of November, 2018.
2 No substitute counsel will be appointed. Should Gonzales wish to seek 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 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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