No. 01-09-00934-CR
Opinion issued December 2, 2010. DO NOT PUBLISH. TEX. R. APP. P. 47.2(b).
On Appeal from the 351st District Court, Harris County, Texas, Trial Court Case No. 1187486.
Panel consists of Justices KEYES, HIGLEY, and BLAND.
JANE BLAND, Justice.
Appellant, Raul Avalos Guzman, pled guilty to the felony offense of aggravated sexual assault of a child without an agreed recommendation for punishment from the State, and, following a pre-sentence investigation (PSI) hearing, the trial court sentenced him to forty-five years' confinement. See TEX. PENAL CODE ANN. § 22.011(a)(2)(A) (Vernon Supp. 2009). Guzman's court-appointed appellate counsel filed a motion to withdraw along with a brief stating his professional opinion that the appeal is without merit and that there are no arguable grounds for reversal. See Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1396, 1400 (1967). Guzman filed a pro se response, arguing: (1) trial court erred by failing to rule on his pretrial motions; (2) he did not voluntarily enter his guilty plea; (3) he received ineffective assistance of counsel; and (4) the trial court erred by failing to read a character reference letter during his PSI hearing and to question his trial counsel about the letter. We have reviewed the record in its entirety and, having found no reversible error, we grant counsel's motion to withdraw and affirm Guzman's conviction.
Background
The State charged Guzman by indictment with aggravated sexual assault of a child less than six years of age. He pled guilty to the charged offense without an agreed recommendation for punishment from the State. After a PSI hearing, the trial court assessed his punishment at forty-five years' confinement. Guzman timely filed his notice of appeal. Discussion
The brief submitted by Guzman's court-appointed appellate counsel states his professional opinion that no arguable grounds for reversal exist, and any appeal would, therefore, lack merit. Anders, 386 U.S. at 744, 87 S. Ct. at 1400. Counsel's brief meets the minimum Anders requirements by presenting a professional evaluation of the record and stating why there are no arguable grounds for reversal on appeal. See Gainous v. State, 436 S.W.2d 137, 138 (Tex. Crim. App. 1969). Counsel sent a copy of the brief to Guzman, requested permission to withdraw from the case, and notified Guzman of his right to review the record and file a pro se response. Guzman filed a response. When we receive an Anders brief from a defendant's court-appointed attorney who asserts that no arguable grounds for appeal exist, we must determine that issue independently by conducting our own review of the entire record. See Anders, 386 U.S. at 744, 87 S. Ct. at 1400 (emphasizing that reviewing court — and not counsel — determines, after full examination of proceedings, whether case is "wholly frivolous"); Stafford v. State, 813 S.W.2d 503, 510 (Tex. Crim. App. 1991). Any pro se response is also considered. See Bledsoe v. State, 178 S.W.3d 824, 826-28 (Tex. Crim. App. 2005). Thus, our role in this Anders appeal, which consists of reviewing the entire record, is limited to determining whether arguable grounds for appeal exist. See id. at 827. If we determine that arguable grounds for appeal exist, we abate the appeal and remand the case to the trial court to allow the court-appointed attorney to withdraw. See id. Then, the trial court appoints another attorney to present all arguable grounds for appeal. See id. If we determine that arguable grounds for appeal do exist, Guzman is entitled to have new counsel address the merits of the issues raised. See id. "Only after the issues have been briefed by new counsel may [we] address the merits of the issues raised." Id. On the other hand, if our independent review of the record leads us to conclude that the appeal is wholly frivolous, we may affirm the trial court's judgment by issuing an opinion in which we explain that we have reviewed the record and find no reversible error. Bledsoe, 178 S.W.3d at 826-28. Guzman may challenge the holding that there are no arguable grounds for appeal by petitioning for discretionary review in the Court of Criminal Appeals. Id. at 827 n. 6. Following Anders and Bledsoe, we have reviewed the record and counsel's Anders brief. We conclude that no reversible error exists. Consequently, we affirm the judgment of the trial court and grant counsel's motion to withdraw. Conclusion
We affirm the judgment of the trial court and grant appointed counsel's motion to withdraw.