Opinion
No. 07-19-00083-CR No. 07-19-00084-CR
12-03-2019
JOSE ARMANDO MELENDEZ, APPELLANT v. THE STATE OF TEXAS, APPELLEE
On Appeal from the 108th District Court Potter County, Texas
Trial Court Nos. 73,838-E-CR & 72,539-E; Honorable Douglas R. Woodburn, Presiding
MEMORANDUM OPINION
Before QUINN, C.J., and PIRTLE and PARKER, JJ.
Appellant, Jose Armando Melendez, appeals from the trial court's judgments revoking his deferred adjudication community supervision, adjudicating him guilty of the offenses of possession of less than one gram of a controlled substance and aggravated assault with a deadly weapon, and sentencing him to concurrent respective sentences of eighteen months and ten years. Appellant's court-appointed attorney has filed a brief in compliance with Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), and In re Schulman, 252 S.W.3d 403 (Tex. Crim. App. 2008), in support of his motion to withdraw. We will affirm the judgments of the trial court and grant counsel's motion to withdraw.
TEX. HEALTH & SAFETY CODE ANN. § 481.115(b) (West 2017).
TEX. PENAL CODE ANN. § 22.02(a)(2) (West 2019).
TEX. PENAL CODE ANN. § 12.35 (West 2019) (providing punishment for state jail felony as confinement in a state jail facility for any term of not more than two years or less than 180 days and a fine not to exceed $10,000). TEX. PENAL CODE ANN. § 12.33 (providing punishment for second degree felony as imprisonment for any term of not more than twenty years or less than two years and a fine not to exceed $10,000).
BACKGROUND
In July 2017, Appellant, pursuant to a plea agreement with the State, entered pleas of guilty to possession of less than one gram of a controlled substance and aggravated assault with a deadly weapon. In exchange for his pleas of guilty, Appellant was placed on deferred adjudication community supervision for a period of five and six years respectively.
Approximately fifteen months later, the State filed a motion to proceed with an adjudication of guilt on the original charge in each case. The court held a hearing at which Appellant pleaded "not true" to each of the State's allegations. Three witnesses testified: Appellant's community supervision officer, the victim of Appellant's aggravated assault with a knife, and Appellant.
Appellant's community supervision officer testified Appellant violated the terms and conditions of his community supervision in several ways. First, he violated the conditions of his SAFPF program by "testing positive to meth and admitting use." Second, Appellant was arrested three times, twice for public intoxication and once for aggravated assault with a deadly weapon, while serving his deferred adjudication community supervision. Appellant's community supervision officer also told the court Appellant was out in the community for "nine days" once he left the SAFPF lockdown before he was confined due to the arrests. And, she testified Appellant was already on probation for two cases of criminal mischief when he pleaded guilty to the offenses underlying the revocation proceeding. The officer recommended revocation of Appellant's deferred adjudication community supervision because of the "continued violence that he has displayed."
The community supervision officer testified Appellant had been convicted for those offenses in a separate proceeding.
The victim of Appellant's aggravated assault testified Appellant "lunged" at him with a knife in the parking lot of a local Holiday Inn as he was attempting to get into his vehicle. The victim managed to get into his vehicle, but Appellant became "enraged" and popped two of the car's tires as the victim drove away. The victim testified he "feared for [his] life" when Appellant came toward him.
Appellant testified, telling the court he was in SAFPF for "[n]ine months for special needs." He said he was then released to go to a halfway house. Shortly thereafter, he found a job with a heating, air conditioning, and plumbing company. He testified that as part of his job, he used a tool for cutting sheetrock or boxes and that he had that tool with him the day he was arrested for aggravated assault. He told the court about the circumstances surrounding his three arrests. With regard to his arrest for aggravated assault with a deadly weapon, Appellant said he was walking to the Holiday Inn when he saw a Tesla at a charging station in the parking lot. He stopped to look at it because he has an interest in renewable energy due to his pursuit of his bachelor's degree in engineering and technology. Appellant then went into the hotel but came back out fairly quickly when he was unable to contact the woman he was going there to meet. He testified the victim "came and confronted" him and was "like, charging me up." Appellant "went charging" at the man and saw him get into his car. He said he thought, "[t]he dude's trying to run me over." To stop him, Appellant used his tool and "popped his tires." He told the court he was not trying to open the driver door as the victim had testified. Appellant also denied using a knife on the victim and said he felt threatened and bullied by the victim. Appellant also denied being intoxicated at the time of any of the three arrests. Appellant asked the judge for "help" with his anger, depression, and suicidal tendencies and expressed a desire to remain on deferred adjudication community supervision to receive that help.
The community supervision officer testified Appellant had been offered assistance in seeking help for his mental health issues but that he "refused."
ANALYSIS
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, 386 U.S. at 744-45; In re Schulman, 252 S.W.3d at 406. Counsel discusses why, under the controlling authorities, the appeals are frivolous. 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 by providing to Appellant a copy of the brief, his motion to withdraw, and the clerk's and reporter's records for each case, and by notifying him of his right to file a pro se response and a petition for discretionary review if he desired to do so. Kelly v. State, 436 S.W.3d 313 (Tex. Crim. App. 2014); In re Schulman, 252 S.W.3d at 408. By letter, we granted Appellant an opportunity to exercise his right to file a response to counsel's brief. Appellant has filed a response raising several issues. The State did not favor us with a brief.
Notwithstanding that Appellant was informed of his 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 his right to file a pro se petition for discretionary review. In re Schulman, 252 S.W.3d at 408 n.22, 411 n.35. The duty to send the client a copy of this court's decision is an informational one, not a representational one. It is ministerial in nature, does not involve legal advice, and exists after the court of appeals has granted counsel's motion to withdraw. Id. at 411 n.33.
When we have an Anders brief by counsel and a pro se response by an appellant, we have two choices. We may determine that the appeal is wholly frivolous and issue an opinion explaining that we have reviewed the record and find no reversible error; Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005) (citing Anders, 386 U.S. at 744), or we may determine that arguable grounds for appeal exist and remand the cause to the trial court so that new counsel may be appointed to brief issues. Id. (citing Stafford v. State, 813 S.W.2d 503, 510 (Tex. Crim. App. 1991)).
In the Anders brief, counsel demonstrates he reviewed the proceedings and sentencing and specifically discusses one potential issue. Counsel concludes there are no arguably meritorious issues for appeal. We have independently examined the entire record, as well as the pro se response, and agree with counsel's assessment. See Penson v. Ohio, 488 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).
CONCLUSION
Accordingly, the trial court's judgments are affirmed and counsel's motion to withdraw is granted.
Patrick A. Pirtle
Justice Do not publish.