No. 13-10-00036-CR
Delivered and filed January 13, 2011. DO NOT PUBLISH. TEX. R. APP. P.47.2(b).
On appeal from the 319th District Court of Nueces County, Texas.
Before Justices GARZA, BENAVIDES, and VELA.
Memorandum Opinion by Justice BENAVIDES.
Appellant, Esperanza Casiano, appeals from her conviction for prostitution, which was enhanced to a second-degree felony under the habitual felony offender statute. See TEX. PENAL CODE ANN. § 43.02(c) (Vernon Supp. 2010) (making prostitution a state jail felony if the State proves that the defendant has been convicted of prostitution three or more times); id. § 12.42 (Vernon Supp. 2010) (elevating a state jail felony to a second-degree felony if the State proves that the defendant "has previously been finally convicted of two felonies, and the second previous felony conviction is for an offense that occurred subsequent to the first previous conviction having become final"). Appellant pleaded guilty to prostitution and true to the enhancement paragraphs in the indictment, without a plea bargain from the State. The State introduced evidence of appellant's criminal record and the stipulations signed by appellant. Appellant testified during the punishment phase that she had a drug problem and engaged in prostitution to support it, and requested community supervision and drug rehabilitation. The trial court accepted the plea, found appellant guilty and that the enhancements were true, and sentenced appellant to ten years' imprisonment. See TEX. PENAL CODE ANN. § 12.33(a) (Vernon Supp. 2010) (setting the punishment range for a second-degree felony as not less than two nor more than twenty years). Concluding that there are "no arguable grounds for reversal," appellant's court-appointed counsel filed an Anders brief in which he reviewed the merits, or lack thereof, of the appeal. We affirm the trial court's judgment.
I. COMPLIANCE WITH ANDERS
Pursuant to Anders v. California, 386 U.S. 738, 744 (1967), appellant's court-appointed appellate counsel has filed a brief in this case, stating that he could find no meritorious issues to bring forward for review. Counsel's brief discusses relevant portions of the record and the applicable law. See In re Schulman, 252 S.W.3d 403, 407 n. 9 (Tex. Crim. App. 2008) (orig. proceeding) ("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) (en banc). 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 is no error in the trial court's judgment. Counsel certified to this Court that he forwarded a copy of his motion to withdraw and its supporting brief to appellant with a letter advising her of her 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 time has passed, and appellant has not filed a pro se response. II. INDEPENDENT REVIEW
Upon receiving an Anders brief, this Court must conduct a full examination of all the proceedings to determine whether the cases are wholly frivolous. Penson v. Ohio, 488 U.S. 75, 80 (1988). We have reviewed the entire record in this case and counsel's brief, and we 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. Accordingly, we affirm the judgment of the trial court. III. 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.) ("If 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 the opinion and the judgment to appellant and to advise appellant of her 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).