DocketNumber： 01-06-00747-CR
Filed Date： 1/17/2008
Status： Precedential
Modified Date： 9/3/2015
Opinion issued January 17, 2008
In The
Court of Appeals
For The
First District of Texas
NO. 01-06-00747-CR
CRUZ TORRES, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 179th District Court
Harris County, Texas
Trial Court Cause No. 1041579
MEMORANDUM OPINION
Appellant, Cruz Torres, pleaded guilty to the offense of aggravated robbery and elected to have the jury decide his punishment. After finding true that Torres had previously committed burglary of a habitation, as alleged in the enhancement paragraph of the indictment, the jury assessed punishment at 60 years’ confinement. Tex. Pen. Code Ann. § 29.03 (Vernon 2003). Torres’s court-appointed counsel on appeal has filed a motion to withdraw along with a brief stating her professional opinion that the appeal is without merit and that there are no arguable grounds for reversal. See Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1396, 1400 (1967). Torres responded pro se. In five issues, Torres contends (1) the trial judge failed to take his oath of office, thus rendering the proceedings void; (2) the trial court erred in allowing biased panel members to sit on the jury; (3) the prosecutor engaged in misconduct by pointing out to the jury Torres’s failure to testify; (4) the evidence was legally insufficient to support the conviction; and (5) his appellate counsel was ineffective. We have reviewed the record and, having found no reversible error, we grant counsel’s motion to withdraw and affirm Torres’s conviction.
Background
On September 14, 2005, while Houston was in the throes of the Hurricane Katrina evacuation, Chaz Hubbard and John Pacheco were driving around looking for an open restaurant or convenience store where they could buy some gasoline and food. Hubbard, who was driving, pulled into a gas station parking lot, but discovered that the station was closed. Hubbard began to back the car out of the lot, but stopped when he saw Torres approach. Torres pulled out a gun and demanded that Hubbard and Pacheco give him their wallets and leave the keys in the car. Hubbard and Pacheco hurried out of the car, and complied with Torres’s demands. Torres sped off in the car. Hubbard and Pacheco managed to flag down a police officer to report the crime, and a short time later, the police found Torres in the car with the gun and the money, and arrested him.
After the jury was seated, Torres appeared for his arraignment. Without prior notice to defense counsel, the prosecutor, or the court, Torres pleaded guilty to the offense as charged in the indictment. Then, the court informed the jury of the consequences of Torres’s guilty plea and embarked on the punishment phase of the trial.
Torres pleaded not true to the enhancement paragraph of the indictment. After the State presented evidence concerning Torres’s prior felony conviction for burglary of a habitation and other punishment phase evidence, the jury assessed its sentence. The trial court signed the judgment, and this appeal timely followed.
Anders Procedure
The brief submitted by Torres’s court-appointed counsel states her professional opinion that there are no arguable grounds for reversal on appeal and that any appeal would, therefore, lack merit. See Anders, 386 U.S. at 744, 87 S. Ct. at 1400. Counsel’s brief meets the minimum Anders requirements by presenting a professional evaluation of the record and stating why there are no arguable grounds for reversal on appeal. See Gainous v. State, 436 S.W.2d 137, 138 (Tex. Crim. App. 1969). Counsel sent a copy of the brief to Torres, requested permission to withdraw from the case, and notified Torres of his right to review the record and file a pro se response.
When we receive an Anders brief from a defendant’s court-appointed attorney who asserts that no arguable grounds for appeal exist, we must determine that issue independently by conducting our own review of the entire record. See Anders, 386 U.S. at 744, 87 S. Ct. at 1400 (emphasizing that reviewing court—and not counsel—determines, after full examination of proceedings, whether case is “wholly frivolous”); Stafford v. State, 813 S.W.2d 503, 510 (Tex. Crim. App. 1991). We also consider any pro se response that the defendant files to his appointed counsel’s Anders brief. See Bledsoe v. State, 178 S.W.3d 824, 826–28 (Tex. Crim. App. 2005).
Thus, our role in this Anders appeal, which consists of reviewing the entire record while remaining mindful of the defendant’s pro se contentions, is limited to determining whether arguable grounds for appeal exist. See id. at 827. If we determine that arguable grounds for appeal exist, we abate the appeal and remand the case to the trial court to allow the court-appointed attorney to withdraw. See id. Then, the trial court either appoints another attorney to present all arguable grounds for appeal or, if the defendant wishes, allows the defendant to proceed pro se. See id. We do not rule on the ultimate merits of the issues raised by Torres in his pro se response. If we determine that arguable grounds for appeal do exist, Torres is entitled to have new counsel address the merits of the issues raised. See id. “Only after the issues have been briefed by new counsel may [we] address the merits of the issues raised.” Id.
On the other hand, if our independent review of the record leads us to conclude that the appeal is wholly frivolous, we may affirm the trial court’s judgment by issuing an opinion in which we explain that we have reviewed the record and find no reversible error. See id. at 826–28. Torres may challenge the holding that there are no arguable grounds for appeal by petitioning for discretionary review in the Court of Criminal Appeals. Id. at 827 & n.6.
Following Anders and Bledsoe, we have reviewed the record, Torres’s appointed counsel’s Anders brief, and Torres’s pro se response to that brief and conclude that no reversible error exists. Consequently, we affirm the judgment of the trial court and grant Torres’s appointed counsel’s motion to withdraw.[1]
Conclusion
We affirm the judgment of the trial court and grant appointed counsel’s motion to withdraw.
Jane Bland
Justice
Panel consists of Chief Justice Radack and Justices Jennings and Bland.
Do not publish. Tex. R. App. P. 47.2(b)
[1] Appointed counsel still has a duty to inform appellant of the result of this appeal, send appellant a copy of this opinion and judgment, and notify appellant that he may, on his own, pursue discretionary review in the Court of Criminal Appeals. Tex. R. App. P. 48.4; see also Bledsoe v. State, 178 S.W.3d 824, 827 (Tex. Crim. App. 2005); Ex parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997); Stephens v. State, 35 S.W.3d 770, 771–72 (Tex. App.—Houston [1st Dist.] 2000, no pet.).