No. 13-10-00044-CR
Delivered and filed February 24, 2011. DO NOT PUBLISH. TEX. R. APP. P. 47.2(b)
On appeal from the 347th District Court of Nueces County, Texas.
Before Chief Justice VALDEZ and Justices RODRIGUEZ and PERKES.
Memorandum Opinion by Justice PERKES.
Appellant Thomas Perez appeals his conviction for retaliation, a third-degree felony. See TEX. PEN. CODE ANN. § 36.06 (Vernon 2003). At trial, appellant testified in his own defense and admitted he assaulted the complainant. Following the jury trial on guilt-innocence, the trial court received evidence on punishment and sentenced appellant to six years of confinement in the Texas Department of Criminal Justice. Appellant filed a timely notice of appeal, and as discussed below, his court-appointed counsel filed an Anders brief. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
The evidence at trial showed that appellant and several cohorts stole pallets from the complainant during a July fourth celebration at a public beach. The pallets were being used to make a bonfire. The complainant called the police who arrived at the scene and asked appellant and his group to leave the area. Appellant and his group departed from the area, but returned shortly after the police left. At trial, appellant testified in his own defense, admitting he assaulted the complainant. On cross examination, appellant admitted he had multiple prior felony convictions and at least one prior misdemeanor conviction involving a crime of moral turpitude. Appellant and the three other men were tried together as co-defendants, and all were found guilty. II. ANDERS BRIEF
Pursuant to Anders v. California, 386 U.S. 738, 744 (1967), 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. 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 High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel Op.] 1978), appellant's counsel has carefully discussed why, under controlling authority, there are no reversible errors in the trial court's judgment. Counsel has informed this Court that he has: (1) examined the record and found no arguable grounds to advance on appeal, (2) served a copy of the brief and counsel's motion to withdraw on appellant, and (3) informed appellant of his right to review the record and to file a pro se response. See Anders, 386 U.S. at 744; 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 period of time has passed, and appellant has not filed a pro se response. See In re Schulman, 252 S.W.3d at 409. III. INDEPENDENT REVIEW
Upon receiving an Anders brief, we must conduct a full examination of all the proceedings to determine whether the case is wholly frivolous. Penson v. Ohio, 488 U.S. 75, 80 (1988). We have reviewed the entire record and counsel's brief and have found nothing that would arguably support an appeal. See Bledsoe v. State, 178 S.W.3d 824, 826-28 (Tex. Crim. App. 2005) ("Due to the nature of Anders briefs, by indicating in the opinion that it considered the issues raised in the briefs and reviewed the record for reversible error but found none, the court of appeals met the requirement of Texas Rule of Appellate Procedure 47.1."); Stafford, 813 S.W.2d at 509. There is no reversible error in the record. Accordingly, the judgment of the trial court is affirmed. IV. MOTION TO WITHDRAW
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.) (noting that "[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).