Serena Rojas v. State

NO. 07-10-0019-CR
NO. 07-10-0020-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
MAY 11, 2011
______________________________
SERENA ROJAS, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM CRIMINAL DISTRICT COURT TWO OF TARRANT COUNTY;
NOS. 1121706D & 1121491D; HONORABLE WAYNE SALVANT, JUDGE
_______________________________
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
Pursuant to open pleas of guilty, Appellant, Serena Rojas, was convicted of
burglary of a habitation in cause number 1121706D1 and aggravated assault with an
affirmative finding on use of a firearm in cause number 1121491D.2 Punishments were
1
Tex. Penal Code Ann. § 30.02(a) (West Supp. 2010).
2
Tex. Penal Code Ann. § 22.02(a)(2) (West 2003).
imposed at twenty years and twenty-five years confinement, respectively.3 The
sentences were ordered to be served concurrently. In presenting this appeal, counsel
has filed an Anders4 brief in support of a motion to withdraw. We grant counsel=s
motion and affirm.
In support of his motion to withdraw, counsel certifies he has conducted a
conscientious examination of the record and, in his opinion, the record reflects no
potentially plausible basis to support an appeal. Anders v. California, 386 U.S. 738,
744-45, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967); In re Schulman, 252 S.W.3d 403, 406
(Tex.Crim.App. 2008). Counsel candidly discusses why, under the controlling
authorities, the appeal is frivolous. See High v. State, 573 S.W.2d 807, 813
(Tex.Crim.App. 1978). Counsel has demonstrated that he has complied with the
requirements of Anders and In re Schulman by (1) providing a copy of the brief to
Appellant, (2) notifying her of the right to file a pro se response if she desired to do so,
and (3) informing her of the right to file a pro se petition for discretionary review. In re
Schulman, 252 S.W.3d at 408.5 By letter, this Court granted Appellant thirty days in
which to exercise her right to file a response to counsel=s brief, should she be so
3
Originally appealed to the Second Court of Appeals, this appeal was transferred to this Court by the
Texas Supreme Court pursuant to its docket equalization efforts. Tex. Gov=t Code Ann. ' 73.001 (West
2005). We are unaware of any conflict between precedent of the Second Court of Appeals and that of
this Court on any relevant issue. Tex. R. App. P. 41.3.
4
Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967).
5
Notwithstanding that Appellant was informed of her right to file a pro se petition for discretionary review
upon execution of the Trial Court=s Certification of Defendant=s Right of Appeal, counsel must comply with
Rule 48.4 of the Texas Rules of Appellate Procedure which provides that counsel shall within five days
after this opinion is handed down, send Appellant a copy of the opinion and judgment together with
notification of her right to file a pro se petition for discretionary review. In re Schulman, at 408 n.22 & at
411 n.35.
2
inclined. Id. at 409 n.23. Appellant did not file a response. Neither did the State favor
us with a brief.
The facts flowing from a guilty plea are minimal. According to evidence
presented at the sentencing hearing, Appellant, a drug addict, had been in trouble since
she was very young. While on trial for the underlying offenses, she was on probation
for burglary.6 She and her younger brother, with whom she shared a very close
relationship, committed offenses together to obtain money to support her drug habit.
During closing argument, the State argued that rehabilitation was not possible
and observed escalation in the seriousness of the offenses committed by Appellant.
The State urged the trial court to impose a minimum sentence of forty years
confinement. Defense counsel argued for another chance for Appellant and the benefit
of SAFP to overcome her drug habit. The trial court noted that Appellant had proven
she could not complete probation and imposed sentences of twenty and twenty-five
years on the charged offenses.
Appellate counsel raises two arguable issues, to-wit: the trial court erred by (1)
imposing a sentence exceeding the plea bargain offer of twenty years and (2) imposing
cruel and unusual punishment. Counsel then analyzes the issues and concedes no
reversible error is presented.
We have independently examined the entire record to determine whether there
are any non-frivolous issues which might support the appeal. See Penson v. Ohio, 488
6
At the sentencing hearing, Appellant's probation was revoked and she was adjudicated guilty of the
burglary offense in cause number 1058663D. That cause, however, is not on appeal before this Court.
3
U.S. 75, 109 S. Ct. 346, 102 L. Ed. 2d 300 (1988); In re Schulman, 252 S.W.3d at 409;
Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim.App. 1991). We have found no such
issues. See Gainous v. State, 436 S.W.2d 137 (Tex.Crim.App. 1969). After reviewing
the record and counsel=s brief, we agree with counsel that there are no plausible
grounds for appeal. See Bledsoe v. State, 178 S.W.3d 824 (Tex.Crim.App. 2005).
Accordingly, counsel's motion to withdraw is granted and the trial court=s
judgments are affirmed.
Patrick A. Pirtle
Justice
Do not publish.
4