Opinion
No. 01-09-00130-CR
Opinion issued May 6, 2010. DO NOT PUBLISH. TEX. R. APP. P. 47.2(B).
On Appeal from the 182nd District Court Harris County, Texas, Trial Court Cause No. 1143832.
MEMORANDUM OPINION
Appellant, Robert Chacon, with an agreed punishment recommendation from the State, pleaded guilty to the offense of aggravated sexual assault of a child. In accordance with the plea agreement, the trial court sentenced appellant to confinement for ten years. Appellant's counsel on appeal has filed a brief stating that the record presents no reversible error and that the appeal is without merit and is frivolous. See Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1396, 1400 (1967). The brief also reflects that counsel delivered a copy of the brief to appellant and advised appellant of his right to file a pro se response. See Stafford v. State, 813 S.W.2d 503, 510-11 (Tex. Crim. App. 1991). Appellant has filed a pro se response, contending that he was "coerced" by the State and his trial counsel and that the complainant, who was his child, "was being coached" to make the accusations against him. Generally, when this Court receives an Anders brief from a defendant's court-appointed appellate counsel, we conduct a review of the entire record to determine whether the appeal is frivolous, i.e., whether it presents any arguable grounds for appeal. See Anders, 386 U.S. at 744, 87 S. Ct. at 1400; Stafford, 813 S.W.2d at 511. An appeal is frivolous when it does not present any argument that could "conceivably persuade the court." In re Schulman, 252 S.W.3d 403, 407 n. 12 (Tex. Crim. App. 2008) (citations omitted). In our Anders review, we consider appellant's pro se response, if any, to his counsel's Anders brief. See Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005). Here, however, we do not undertake our normal Anders analysis. Appellant and his trial counsel signed a waiver of constitutional rights, an agreement to stipulate to evidence, and a judicial confession providing, among other things, that appellant pleaded guilty to the charged offense in exchange for the State's punishment recommendation of ten years confinement. Appellant also waived his right to appeal upon the trial court accepting the plea agreement. The trial court, after determining that appellant entered the plea knowingly and voluntarily and that appellant's trial counsel was competent, accepted the plea agreement. The trial court admonished appellant, and appellant and appellant's trial counsel signed the admonishments. The trial court entered judgment in accordance with the plea agreement and stated in its judgment, "Appeal Waived. No Permission to Appeal Granted." After the trial court sentenced appellant in accordance with the plea agreement, the trial court certified that this case "is a plea-bargain case, and the defendant has NO right of appeal." Nevertheless, appellant subsequently filed a pro se notice of appeal, and the trial court appointed appellant's appellate counsel, who has filed the above-described Anders brief, in which she notes that the trial court has correctly certified that appellant has no right to appeal. We conclude that the trial court's certification that this case is a plea bargain case and that appellant has no right of appeal is supported by the record and is correct. TEX. R. APP. P. 25.2(a)(2). Because appellant has no right of appeal, we must dismiss this appeal "without further action." Chavez v. State, 183 S.W.3d 675, 680 (Tex. Crim. App. 2006) ("A court of appeals, while having jurisdiction to ascertain whether an appellant who plea-bargained is permitted to appeal by Rule 25.2(a)(2), must dismiss a prohibited appeal without further action, regardless of the basis for the appeal. Here, appellant had no right of appeal because he was sentenced pursuant to the agreed terms of a plea bargain and did not satisfy either of the exceptions stated in Rule 25.2(a)(2). In such circumstances, no inquiry into even possibly meritorious claims may be made."); see also Terrell v. State, 245 S.W.3d 602, 606 (Tex. App.-Houston [1st Dist.] 2007, no pet.).
See TEX. PENAL CODE ANN. § 22.021 (Vernon Supp. 2009).
Counsel in her brief asserts that the trial court has correctly certified that appellant has no right to appeal.