Emmanuel Peralta Morales v. State

                                            NUMBER 13-03-035-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

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EMMANUEL PERALTA MORALES,                                            Appellant,

v.

THE STATE OF TEXAS,                                                                Appellee.

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    On appeal from the 339th District Court

of Harris County, Texas.

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    CONCURRING MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Hinojosa and Castillo  

Concurring Memorandum Opinion by Justice Castillo

          I write separately because the majority summarily states that this Court independently reviewed the record for error without explaining what that review entailed. I do not believe Penson permits us to be conclusory in reciting our compliance with our independent duty under Anders any more than it permits Anders counsel to summarily conclude that an appeal is meritless. See Penson v. Ohio, 488 U.S. 75, 80 (1988); see also Anders v. California, 386 U.S. 738, 744-45 (1967); High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel Op.] 1978).

          This is an appeal following a jury trial in a murder case. The trial court has certified that Morales has the right of appeal. See Tex. R. App. P. 25.2(a)(2). Accordingly, just as we required of Anders counsel in this case, I would detail our independent review of the indictment, pre-trial motions, voir dire, opening statements, legal and factual sufficiency of the evidence, the jury charge, closing argument, and the punishment phase. See Gearhart v. State, 122 S.W.3d 459, 465-69 (Tex. App.–Corpus Christi 2003, pet. dism'd) (detailing independent review undertaken in appeal following jury trial); Beckette v. State, 31 Md. App. 85, 98 (Md. Ct. Spec. App. 1976) (discussing scope of independent review following jury trial); see also Chavez v. State, Nos. 13-03-174-CR & 13-03-175-CR, 2004 Tex. App. LEXIS 5100, at *37 (Tex. App.–Corpus Christi June 10, 2004, no pet. h.) (discussing independent review undertaken in appeals following guilty pleas) (designated for publication); Martinez v. State, 791 A.2d 751, *3-*11 (Del. 2002) (not yet released for publication in the permanent law reporters) (detailing independent review performed by appellate court); cf. State v. Benjamin, 573 So. 2d 528, 531 (La. Ct. App. 1990) (discussing scope of independent review undertaken by appellate court).

          An Anders brief must provide references to both legal precedent and pages in the record to demonstrate why there are no arguable grounds to be advanced. High, 573 S.W.2d at 812. Similarly, we should inform the parties what we have done, not just assure them we have done it, "especially in view of the fact that defendant's appeal to this court is his 'appeal of right.'" State v. Begley, 534 S.W.2d 632, 634 (Mo. Ct. App. 1976) (quoting Ross v. Moffitt, 417 U.S. 600, 607 (1974); State v. Barnes, 517 S.W.2d 155, 168-69 (Mo. Ct. App. 1974)).

                                                                           ERRLINDA CASTILLO

                                                                           Justice

Publish

Tex. R. App. P. 47.2(b).

Concurring Memorandum Opinion delivered

and filed this 19th day of August, 2004.