Luis Aguilar v. State

NUMBER 13-10-00678-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
LUIS AGUILAR, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 28th District Court
of Nueces County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Longoria
Memorandum Opinion by Chief Justice Valdez
A jury found appellant, Luis Aguilar, guilty of murder. See TEX. PENAL CODE ANN.
§ 19.02 (West Supp. 2011). The trial court sentenced Aguilar to twenty-five years’
confinement. Aguilar’s appellate counsel, concluding that the appeal in this cause is
frivolous, filed an Anders brief, in which he reviewed the merits, or lack thereof, of the
appeal. We affirm.
I. ANDERS BRIEF
Pursuant to Anders v. California, 386 U.S. 738, 744 (1967), Aguilar’s appellate
counsel has filed a motion to withdraw and a brief with this Court stating that after
“diligently review[ing] the entire record in this cause and the law applicable thereto,” he
has concluded “that there are no grounds of error upon which an appeal can be
predicated.” Counsel’s brief meets the requirements of Anders as it presents a
professional evaluation demonstrating why there are no arguable grounds to advance
on appeal. See In re Schulman, 252 S.W.3d 403, 407 n.9 (Tex. Crim. App. 2008) (AIn
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).
In compliance with High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel
Op.] 1978), Aguilar’s counsel has carefully discussed why, under controlling authority,
there are no errors in the trial court’s judgment. Counsel specifically noted that after
reviewing the record he has concluded the following: (1) no jurisdictional error exists;
(2) no procedural error is apparent; (3) the evidence is sufficient to support the
judgment: (4) “no evidence [exists] to support [an] abuse of discretion by the Court”; and
(5) there is nothing in the record supporting a claim for ineffective assistance of trial
counsel. Counsel has demonstrated that he has complied with the requirements of
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Anders by (1) examining the record and finding no arguable grounds to advance on
appeal, (2) serving a copy of the brief and motion to withdraw as counsel on Aguilar, (3)
providing Aguilar with a copy of the record, and (4) informing Aguilar of his right to
review the record and to file a pro se response raising any ground of error or complaint
which he may desire. 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. Counsel has informed this Court that
he has forwarded a copy of his brief to Aguilar and has informed Aguilar of his right to
file a pro se response. 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 period of
time has passed, and Aguilar 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, we must conduct a full examination of all the
proceedings to determine whether the case is wholly frivolous. Penson v. Ohio, 488
U.S. 75, 80 (1988). We have reviewed the entire record and counsel’s brief; however,
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) (ADue 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.
Accordingly, we affirm the judgment of the trial court.
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III. MOTION TO WITHDRAW
In accordance with Anders, Aguilar’s attorney has asked this Court for
permission to withdraw as counsel. 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.) (AIf 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. Within five days of the date of this Court’s opinion, counsel is
ordered to send a copy of the opinion and judgment to Aguilar and advise him of his
right to file a petition for discretionary review.1 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).
________________________
ROGELIO VALDEZ
Chief Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
25th day of April, 2013.
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No substitute counsel will be appointed. Should Aguilar wish to seek further 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 or timely
motion for en banc reconsideration that was overruled by this Court. See TEX. R. APP. P. 68.2. Effective
September 1, 2011, 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 Rule 68.4 of the Texas Rules of Appellate Procedure. See id. R. 68.4.
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