Fidel Ispano Davis A/K/A Fefel Esphino Davis v. State

NUMBER 13-11-00049-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
FIDEL ISPANO DAVIS
A/K/A FEFEL ESPHINO DAVIS, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the Criminal District Court
of Jefferson County, Texas.
MEMORANDUM OPINION
Before Justices Garza, Vela, and Perkes
Memorandum Opinion by Justice Perkes
Appellant, Fidel Ispano Davis a/k/a Fefel Esphino Davis, appeals his conviction for
evading detention with a motor vehicle. See TEX. PENAL CODE ANN. § 38.04(b)(2) (West
2003). The offense was a third-degree felony because appellant had a prior conviction
for evading detention. See id. The State also alleged appellant was a habitual-felony
offender, and in the punishment phase of trial, appellant pleaded “true” to the prior
convictions the State alleged to show appellant‟s habitual-felony-offender status. See
id. § 12.42(d) (West Supp. 2009). A jury found appellant guilty and sentenced him to
twenty-five years of confinement in the Texas Department of Criminal Justice. The trial
court ordered appellant‟s sentence to run consecutively, commencing after he finishes
serving his sentences in several other cases. See TEX. CODE CRIM. PROC. art. 42.08(a)
(West Supp. 2009). This appeal followed and appellant‟s court-appointed attorney filed
an Anders brief. We affirm.
I. ANDERS BRIEF
Pursuant to Anders v. California, 386 U.S. 738, 744 (1967), appellant‟s
court-appointed appellate counsel has filed a brief and a motion to withdraw with this
Court, stating that her review of the record yielded 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) (“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).
In compliance with High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel
Op.] 1978), appellant‟s counsel has carefully discussed why, in light of controlling
authority, there are no reversible errors in the trial court‟s judgment. Counsel has
informed this Court that she has: (1) examined the record and found no arguable
grounds to advance on appeal, (2) served a copy of the brief and counsel‟s motion to
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withdraw on appellant, and (3) informed appellant of his right to review the record and to
file a pro se response.1 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. Appellant has responded by filing a
timely pro se brief.
II. INDEPENDENT REVIEW
A court of appeals has two options when an Anders brief and a subsequent pro se
response are filed. After reviewing the entire record, it may: (1) determine that the
appeal is wholly frivolous and issue an opinion explaining that it finds no reversible error;
or (2) determine that there are arguable grounds for appeal and remand the case to the
trial court for appointment of new appellate counsel. Bledsoe v. State, 178 S.W.3d 824,
826-27 (Tex. Crim. App. 2005). If the court finds arguable grounds for appeal, it may not
review those grounds until after new counsel has briefed those issues on appeal. Id.
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, counsel‟s brief, and appellant‟s pro
se response and have found nothing that would arguably support an appeal. See
Bledsoe, 178 S.W.3d at 827-28 (“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. There is no reversible error in
the record. Accordingly, the judgment of the trial court is affirmed.
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)
(quoting Wilson v. State, 955 S.W.2d 693, 696-97 (Tex. App.—Waco 1997, no pet.)).
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III. MOTION TO WITHDRAW
In accordance with Anders, appellant‟s attorney has asked this Court for
permission to withdraw as counsel for appellant. 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.) (noting that “[i]f 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 this opinion and this Court‟s judgment to appellant
and to advise him of his right to file a petition for discretionary 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).
______________________
Gregory T. Perkes
Justice
Do not publish. TEX. R. APP. P. 47.2(b).
Delivered and filed the
19th day of May, 2011.
2
No substitute counsel will be appointed. Should appellant 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 that
was overruled by this Court. See TEX. R. APP. P. 68.2. Any petition for discretionary review must be filed
with this Court, after which it will be forwarded to the Texas Court of Criminal Appeals. See TEX. R. APP. P.
68.3, 68.7. Any petition for discretionary review should comply with the requirements of Texas Rule of
Appellate Procedure 68.4. See TEX. R. APP. P. 68.4.
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