No. 13-02-708-CR
Memorandum Opinion Delivered and Filed July 1, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On appeal from the 197th District Court of Cameron County, Texas.
Before Chief Justice VALDEZ and Justices HINOJOSA and CASTILLO.
Memorandum Opinion by Justice CASTILLO.
Hector Guadalupe Tabares appeals his conviction for repeated violation of a protective order. Tabares pleaded guilty pursuant to an agreed punishment recommendation. The trial court honored the plea agreement and sentenced him to eight years in the Institutional Division of the Texas Department of Criminal Justice. We conclude that Tabares's appeal is frivolous and without merit. We dismiss.
Tabares is also known as Hector Montemayor.
See Tex. Pen. Code Ann. § 25.97(a), (g) (Vernon 2003).
I. BACKGROUND
Tabares filed a timely notice of appeal on December 3, 2002. The rules of appellate procedure governing how appeals proceed in criminal cases were amended effective January 1, 2003. This Court applies the amended rules of appellate procedure to all cases on appeal on the effective date of the amendments. See, e.g., Chavez v. State, Nos. 13-03-174-CR 13-03-175-CR, 2004 Tex. App. LEXIS 5100, at *2 (Tex. App.-Corpus Christi June 10, 2004, no pet. h.). The trial court has filed a certification that Tabares has no right to appeal (the "CORTA"). See Tex.R.App.P. 25.2(a)(2). II. DISPOSITION A. Anders Brief
Tabares's court-appointed appellate counsel has filed a brief in which he concludes that this appeal is frivolous. See Anders v. California, 386 U.S. 738, 744-45 (1967). Counsel has certified that: (1) he diligently reviewed the record for reversible error; (2) in his opinion, the appeal is without merit; (3) he served a copy of the brief on Tabares and informed him of his right to review the record; and (4) he informed Tabares of his right to file a pro se brief on his own behalf. See id.; see also High v. State, 573 S.W.2d 807, 813 (Tex.Crim. App. [Panel Op.] 1978); McMahon v. State, 529 S.W.2d 771, 772 (Tex.Crim.App. 1975); Johnson v. State, 885 S.W.2d 641, 646 (Tex. App.-Waco 1994, pet. ref'd) (per curiam). More than thirty days have passed since the date of counsel's letter. Tabares has not requested the record or filed a pro se brief. An Anders brief must provide references to both legal precedent and pages in the record to demonstrate why there are no arguable grounds to be advanced. High, 573 S.W.2d at 812. Counsel's brief does not advance any arguable issues. However, counsel professionally evaluates the record and demonstrates why there are no arguable issues. See Currie v. State, 516 S.W.2d 684, 684 (Tex.Crim.App. 1974). With relevant citation to legal precedent and the record, counsel professionally evaluates the pre-trial proceedings, the admonishments in the record, and the plea proceedings. We do not interpret Anders as requiring appointed counsel to make arguments counsel would not consider worthy of inclusion in a brief for a paying client or to urge reversal if, in fact, counsel finds no arguable issue to appeal. See id. We hold that counsel's brief is not the "conclusory statement" decried by Anders. See id. We turn to our independent review of the record as mandated by Anders. See Penson v. Ohio, 488 U.S. 75, 80 (1988); see also Chavez, 2004 Tex. App. LEXIS 5100, at *37. B. Independent Review of the Record
In our independent review of the record under Anders and Penson in an appeal following a guilty plea, we first determine if the appellant executed a valid waiver of the right to appeal. Escochea v. State, No. 13-01-761-CR, 2004 Tex. App. LEXIS 5366, at *32 (Tex. App.-Corpus Christi June 17, 2004, no pet. h.). After examining the record, we conclude that Tabares did not waive his right to appeal. Our review of the record also reveals that the plea bargain in this case incorporated an agreed recommendation as to punishment that was accepted by the trial court. See Tex.R.App.P. 25.2(a)(2); see also Chavez, 2004 Tex. App. LEXIS 5100, at *37. Accordingly, at this time the scope of our duty under Anders and Penson to review the record independently requires us to examine the record: (1) following revocation of regular community supervision, for any error in the revocation proceeding; (2) following a deferred adjudication of guilt, for errors unrelated to the conviction; (3) for jurisdictional defects in all cases; (4) for matters raised by written motion ruled on before trial in all cases; (5) for all matters the trial court granted permission to appeal; and (6) in all cases, the legality of the sentence imposed as authorized by law. Chavez, 2004 Tex. App. LEXIS 5100, at *31-*32. We note that Tabares is not appealing from a revocation or adjudication proceeding. The record reveals a number of pretrial motions, but the trial court did not expressly or implicitly rule on any of them. See Tex.R.App.P. 25.2(a)(2). Nor did the trial court give Tabares permission to appeal. Consequently, we independently review the record only for jurisdictional defects and to determine the legality of the sentence imposed as authorized by law. See Chavez, 2004 Tex. App. LEXIS 5100, at *31-*32. We find no jurisdictional defects. Moreover, the eight-year sentence Tabares received is within the range authorized by law and is not illegal. See id. at *39-*40. C. Conclusion
Having fulfilled our duty to examine the record for error independently, we conclude that Tabares's appeal is frivolous and without merit. The record does not substantiate that Tabares has any right of appeal. See id. at * 41. It follows, therefore, that the record does not, and cannot, contain a CORTA showing that Tabares has the right of appeal. See Tex.R.App.P. 25.2(d); see also Chavez, 2004 Tex. App. LEXIS 5100, at *42. Accordingly, we dismiss this appeal. See Tex.R.App.P. 25.2(d); see also Chavez, 2004 Tex. App. LEXIS 5100, at *42. D. Motion to Withdraw
An appellate court may grant counsel's motion to withdraw filed in connection with an Anders brief. Chavez, 2004 Tex. App. LEXIS 5100, at *42 (and cited cases). Counsel has requested to withdraw from further representation of Tabares on this appeal. We grant counsel's motion to withdraw and order him to inform Tabares of the disposition of this case and the availability of discretionary review. See Ex parte Wilson, 956 S.W.2d 25, 27 (Tex.Crim.App. 1997) (per curiam).