Raul Ernesto Silva v. State

NUMBER 13-17-00576-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
RAUL ERNESTO SILVA, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 24th District Court
of Calhoun County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Longoria, and Hinojosa
Memorandum Opinion by Justice Rodriguez
Appellant Raul Ernesto Silva appeals from his conviction for aggravated sexual
assault of a child, a first-degree felony. See TEX. PENAL CODE ANN. § 22.021(e) (West,
Westlaw through 2017 1st C.S.). The trial court found Silva guilty of the offense and
sentenced him to forty years in the Institutional Division of the Texas Department of
Criminal Justice. Determining that there are no errors that would result in 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, Silva’s counsel filed a brief stating that, after a
thorough review of the record, “there are no errors that would result in the reversal of the
judgment, conviction and sentence in this matter.” 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, Silva’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
advance on appeal; (2) notifying Silva that counsel has filed an Anders brief; (3) providing
Silva with a copy of the Anders’ brief, which include counsel’s request to withdraw; (4)
informing Silva 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 (5)
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providing Silva with a form motion for pro se access to the appellate record, lacking only
Silva’s signature and including the mailing address for this Court.1 See Anders, 386 U.S.
at 744; Stafford v. State, 813 S.W.2d 503, 510 n.3; see also In re Schulman, 252 S.W.3d
at 409 n.23. The District Clerk has informed this Court that the clerk’s record was
delivered to Silva on August 1, 2018 and the reporter’s record on August 2, 2018. Silva’s
motion to extend time to file his response was granted until November 30, 2018. An
adequate amount of time has passed, and Silva 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 appellate brief which
includes his request to withdraw, and the State’s response. 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 at 509. We affirm the judgment.
III. MOTION TO WITHDRAW
In accordance with Anders, counsel has requested to withdraw as counsel. See
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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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 November 2, 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 Silva and to advise Silva 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 19th
day of December, 2018.
2 No substitute counsel will be appointed. Should Silva 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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