Nos. 13-03-00008-CR, 13-03-00009-CR
Memorandum Opinion delivered and filed July 22, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On appeal from the 156th District Court of Bee County, Texas.
Before Chief Justice VALDEZ and Justices HINOJOSA and CASTILLO.
FEDERICO G. HINOJOSA, Justice.
Pursuant to a plea agreement, appellant, Luis Banda, Jr. a/k/a Louis Banda, Jr., pleaded guilty: (1) in cause number 13-03-00008-CR to two counts of delivery of less than one gram of a controlled substance, and (2) in cause number 13-03-00009-CR to one count of delivery of more than one gram but less than four grams of a controlled substance. The trial court found appellant guilty in both cases and, in accordance with the plea agreement, assessed his punishment at eighteen months confinement in a state jail facility in cause number 13-03-00008-CR and ten years imprisonment in cause number 13-03-00009-CR, with the sentences running concurrently. The trial court has certified that this "is a plea-bargain case, and the defendant has NO right of appeal." See Tex.R.App.P. 25.2(d).
Trial court cause number B-02-2126-0-CR-B.
See Tex. Health Safety Code Ann. § 481.112(b) (Vernon 2003).
Trial court cause number B-02-2127-0-CR-B.
See Tex. Health Safety Code Ann. § 481.112(c) (Vernon 2003).
A. Anders Brief
On March 24, 2003, appellant's attorney filed a brief with this Court asserting there is no basis for appeal. See Anders v. California, 386 U.S. 738 (1967). According to the brief, counsel has reviewed the clerk's record and reporter's record and has concluded that appellant's appeal is frivolous and without merit. See id. The brief meets the requirements of Anders as it presents a professional evaluation showing why there are no arguable grounds for advancing an appeal. See 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. 1978), counsel has carefully discussed why, under the controlling authorities, there are no errors in the trial court's judgment. After reviewing counsel's brief, we noted it did not show that counsel had informed appellant that: (1) he had the right to file a brief on his own behalf and (2) he had the right to review the record to determine what points to raise in a pro se brief. See Johnson v. State, 885 S.W.2d 641, 645 (Tex.App.-Waco 1994, pet. ref'd). On November 20, 2003, we abated this appeal to allow counsel to notify appellant of his right to review the record and file a pro se brief, if he so desired. If appellant wished to file a pro se brief, it was to be filed on or before January 5, 2004. We ordered counsel to provide this Court with a written copy of such notification on or before December 1, 2003. Appellant's counsel has certified that on November 24, 2003, he informed appellant of his right to examine the appellate record and to file a pro se brief. No such brief has been filed. Upon receiving a "frivolous appeal" brief, the appellate courts must conduct "a full examination of all the proceedings to decide whether the case is wholly frivolous." Penson v. Ohio, 488 U.S. 75, 80 (1988); see Garza v. State, 126 S.W.3d 312, 313 (Tex.App.-Corpus Christi 2004, no pet.). We have carefully reviewed the appellate record and counsel's brief. The record shows that appellant waived his right to appeal by written waiver. We find nothing in the record that might arguably support this appeal. Accordingly, we dismiss this appeal. B. Motion to Withdraw
An appellate court may grant counsel's motion to withdraw filed in connection with an Anders brief. Moore v. State, 466 S.W.2d 289, 291 n. 1 (Tex.Crim.App. 1971); see Stafford, 813 S.W.2d at 511 (noting that Anders brief should be filed with request for withdrawal from case). We note that counsel has not filed a motion to withdraw in this case. If counsel wishes to file a motion to withdraw, he must file the motion no later than fifteen days from the date of this opinion. We order counsel to advise appellant promptly 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).