Tijerina v. State

Memorandum Opinion by Justice Garza

On appeal from the 36th District Court of San Patricio County, Texas.

Before Chief Justice Valdez and Justices Garza and Longoria
Memorandum Opinion by Justice Garza

Pursuant to a plea bargain, appellant Lucas Ray Tijerina pleaded guilty to aggravated assault, a second-degree felony offense, in March 2015. See TEX. PENAL CODE ANN. § 22.02(a)(2), (b) (West, Westlaw through 2015 R.S.). The trial court placed appellant on deferred adjudication community supervision for a period of six years. In August 2015, the State filed a motion to revoke appellant's deferred adjudication community supervision and adjudicate him guilty. Following a hearing in which appellant pleaded "true" to the State's allegations, the trial court revoked his community supervision, adjudicated him guilty, and sentenced him to twelve years' imprisonment. Appellant's court-appointed counsel has filed an Anders brief. See Anders v. California, 386 U.S. 738, 744 (1967). We affirm.

Pursuant to Anders v. California, appellant's court-appointed appellate counsel has filed a brief and a motion to withdraw with this Court stating that his review of the record yielded no grounds of error upon which an appeal can be predicated. See id. 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 Kelly v. State, 436 S.W.3d 313, 319-20 (Tex. Crim. App. 2014), and High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel Op.] 1978), appellant's counsel carefully discussed why, under controlling authority, there is no reversible error in the trial court's judgment. Counsel has informed this Court, in writing, that counsel has: (1) notified appellant that counsel has filed an Anders brief and a motion to withdraw; (2) provided the appellant with copies of both pleadings; (3) informed the appellant of appellant's rights to file a pro se response, and review the record preparatory to filing that response; and (4) provided appellant with a pro se motion for access to the appellate record. See Anders, 386 U.S. at 744; Kelly, 436 S.W.3d at 319-320, 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 time has passed, and appellant has not filed a pro se response.

Upon receiving an Anders brief, we must conduct a full examination of all the proceedings to determine whether the appeal is wholly frivolous. Penson v. Ohio, 488 U.S. 75, 80 (1988). We have reviewed the record and counsel's brief, and we have found no reversible error. See Bledsoe v. State, 178 S.W.3d 824, 827-28 (Tex. Crim. App. 2005) ("Due to the nature of Anders briefs, by indicating in the opinion it considered the issues raised in the brief and reviewed the record for reversible error but found none, the court of appeals met the requirements of Texas Rule of Appellate Procedure 47.1."); Stafford, 813 S.W.2d at 509. Accordingly, we affirm the judgment of the trial court.

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.) ("[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. 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).

DORI CONTRERAS GARZA,

Justice Do not publish.
TEX. R. APP. P. 47.2(b). Delivered and filed the 4th day of August, 2016.