Opinion
NO. 01-14-00172-CR
05-05-2015
PRAXEDIS VILLANUEVA, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 412th District Court Brazoria County, Texas
Trial Court Cause No. 69425
MEMORANDUM OPINION
Appellant, Praxedis Villanueva, pleaded not guilty to four counts of aggravated sexual assault of a child. Trial was had to a jury. The jury found Villanueva guilty on three of the four counts, and the jury assessed punishment at thirty-three (33) years' confinement in the Texas Department of Criminal Justice. Appellant here appeals from the February 6, 2014 "Judgment of Conviction by Jury."
Appellant's appointed counsel on appeal has filed a motion to withdraw, along with an Anders brief stating that the record presents no reversible error and therefore the appeal is without merit and is frivolous. See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396 (1967).
Counsel's brief meets the Anders requirements by presenting a professional evaluation of the record and supplying us with references to the record and legal authority. See Anders, 386 U.S. at 744, 87 S. Ct. at 1400; see also High v. State, 573 S.W.2d 807, 812-13 (Tex. Crim. App. 1978). Counsel indicates that he has thoroughly reviewed the record and that he is unable to advance any grounds of error that warrant reversal. See Anders, 386 U.S. at 744, 87 S. Ct. at 1400; Mitchell v. State, 193 S.W.3d 153, 155 (Tex. App.—Houston [1st Dist.] 2006, no pet.).
Counsel has informed us that he has delivered a copy of the brief to appellant and informed him of his right to examine the appellate record and to file a response. See In re Schulman, 252 S.W.3d 403, 408 (Tex. Crim. App. 2008). Appellant has not filed a response.
We have independently reviewed the entire record in this appeal, and we conclude that no reversible error exists in the record, that there are no arguable grounds for review, and that therefore the appeal is frivolous. 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 appeal is wholly frivolous); Garner v. State, 300 S.W.3d 763, 767 (Tex. Crim. App. 2009) (explaining that frivolity is determined by considering whether there are "arguable grounds" for review); Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005) (reviewing court must determine whether arguable grounds for review exist); Mitchell, 193 S.W.3d at 155 (reviewing court determines whether arguable grounds exist by reviewing entire record). An appellant may challenge a holding that there are no arguable grounds for appeal by filing a petition for discretionary review in the Court of Criminal Appeals. See Bledsoe, 178 S.W.3d at 827 & n.6.
We note that the judgment includes attorney's fees. There is no evidence in the record to indicate Villanueva's financial circumstances materially changed after the trial court initially found him to be indigent and appointed counsel to represent him. We conclude that the evidence is insufficient to support the order requiring appellant to pay attorney's fees for his court-appointed defense counsel. See Jones v. State, 428 S.W.3d 163, 171-2 (Tex. App.—Houston [1st Dist.] 2014, no pet.). Therefore, we modify the judgment to remove the assessment of $4,375.00 in attorney's fees.
We affirm the judgment of the trial court as modified and grant counsel's motion to withdraw. Attorney Perry Stevens must immediately send the notice required by Texas Rule of Appellate Procedure 6.5(c) and file a copy of that notice with the Clerk of this Court. See TEX. R. APP. P. 6.5(c).
Appointed counsel still has a duty to inform appellant of the result of this appeal and that he may, on his own, pursue discretionary review in the Texas Court of Criminal Appeals. See Ex Parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997).
PER CURIAM Panel consists of Chief Justice Radack and Justices Brown and Lloyd. Do not publish. TEX. R. APP. P. 47.2(b).