No. 13-09-00274-CR
Delivered and filed May 5, 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 DO NOT PUBLISH.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, VELA, and PERKES.
Memorandum Opinion by Justice PERKES.
Appellant, Jerry Lee Alvarez, appeals his conviction of one count of burglary of a habitation, a first-degree felony. See TEX. PENAL CODE ANN. § 30.02 (West 2010). Pursuant to a judicial confession and stipulation, appellant pleaded guilty to one count of burglary of a habitation, and pleaded true to an enhancement paragraph regarding a prior conviction of burglary of a habitation. The trial court sentenced appellant to a fifty-year term of confinement in the Texas Department of Criminal Justice, Institutional Division. Appellant filed a notice of appeal, and as discussed below, his court-appointed counsel filed an Anders brief. We affirm.
The Texas Court of Criminal Appeals heard the matter upon an Application for Writ of Habeas Corpus and granted an out-of-time appeal, thereby allowing appellant to pursue this appeal. Ex Parte Jerry Lee Alvarez, CCRA No. AP-76,127 (Tex. Crim. App., April 30, 2009).
I. ANDERS BRIEF
Pursuant to Anders v. California, 386 U.S. 738, 744 (1967), appellant's court-appointed appellate counsel 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 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. II. 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, 827-28 (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. III. MOTION TO WITHDRAW
In accordance with Anders, appellant's attorney 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).