Travis Diaz v. State

NUMBER 13-18-00403-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
TRAVIS DIAZ, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 214th District Court
of Nueces County, Texas.
MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Longoria and Perkes
Memorandum Opinion by Justice Longoria
On April 24, 2018, appellant Travis Diaz pleaded guilty to two counts of aggravated
robbery, a first-degree felony. See TEX. PENAL CODE ANN. § 29.03. The trial court
accepted Diaz’s guilty plea and sentenced Diaz to twenty-five years in the Institutional
Division of the Texas Department of Criminal Justice, which is within the statutory range
for first-degree felonies. See id. § 12.32(a). Diaz’s counsel has filed an Anders brief.
See Anders v. California, 386 U.S. 738, 744 (1967). We affirm.
I. ANDERS BRIEF
Diaz’s appellate counsel has filed a motion to withdraw and a brief in support in
which he states that he has diligently reviewed the entire record and has found no non-
frivolous issues. See id. Counsel’s brief meets the requirements of Anders as it presents
a thorough, professional evaluation of the record showing why there are no arguable
grounds for advancing an appeal. See ln re Schulman, 252 S.W.3d 403, 407 n.9 (Tex.
Crim. App. 2008) (orig. proceeding) (“ln 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.”);
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), Diaz’s
counsel carefully discussed why, under controlling authority, there is no reversible error
in the trial court’s judgment. Diaz’s counsel also informed this Court that he has: (1)
notified Diaz that he has filed an Anders brief and a motion to withdraw, and that he
provided Diaz with copies of both; (2) informed Diaz of his right to file a pro se response
and of his right to review the record preparatory to filing that response; (3) informed Diaz
of his pro se right to seek discretionary review if we conclude that the appeal is frivolous;
and (4) provided Diaz with a form motion for pro se access to the appellate record, lacking
only Diaz’s signature. See Anders, 386 U.S. at 744; Kelly, 436 S.W.3d at 319–20;
2
Stafford, 813 S.W.2d at 510 n.3; see also ln re Schulman, 252 S.W.3d at 409 n.23. More
than an adequate time has passed, and Diaz has not filed a pro se motion for access to
the appellate record or a motion for extension of time to do so or 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 appeal is wholly frivolous. See Penson v. Ohio,
488 U.S. 75, 80 (1988); Stafford, 813 S.W.2d at 511. We have reviewed the record and
counsel’s brief and we have found no reversible error. See Bledsoe, 178 S.W.3d at 827–
28 (“Due to the nature of Anders briefs, by indicating in the opinion it considered the
issues raised in the brief 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 509.
III. MOTION TO WITHDRAW
In accordance with Anders, Diaz’s appellate counsel has filed a motion to
withdraw. See Anders, 386 U.S. at 744: see also ln re Schulman, 252 S.W.3d at 408
n.17 (“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) (citing Jeffery v. State, 903 S.W.2d 776, 779–80 (Tex.
App.—Dallas 1995, no pet.))). We grant counsel’s motion to withdraw. Within five days
of the date of this opinion, counsel is ordered to send a copy of the opinion and judgment
to Diaz and to advise him of his right to file a petition for discretionary review. 1 See TEX.
1 No substitute counsel will be appointed. Should appellant wish to seek further review of this case
3
R. APP. P. 48.4; see also ln re Schulman, 252 S.W.3d at 412 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 the
3rd day of October, 2019.
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,
and should comply with the requirements of Texas Rule of Appellate Procedure 68.4. See id. R. 68.4.
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