Opinion
NUMBER 13-15-00050-CR
01-07-2016
JUAN GONZALES, JR., Appellant, v. THE STATE OF TEXAS, Appellee.
On appeal from the 103rd District Court of Cameron County, Texas.
MEMORANDUM OPINION
Before Justices Garza, Perkes and Longoria
Memorandum Opinion by Justice Longoria
Appellant Juan Gonzalez Jr. was charged with two counts of sexual assault of a child, a second-degree felony. See TEX. PENAL CODE ANN. § 22.011(a)(2) (West, Westlaw through 2015 R.S.). A jury sentenced Gonzalez to ten years' confinement for each count; the trial court ordered that the sentences be served consecutively. This appeal ensued. Gonzalez's counsel has filed an Anders brief. See Anders v. California, 386 U.S. 738, 744 (1967). We affirm.
I. ANDERS BRIEF
Gonzalez's appellate counsel has filed a motion to withdraw and a brief in support in which he states that he has diligently reviewed the entire record and has found no non-frivolous issues. See Anders, 386 U.S. at 744; High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel Op.] 1978). Counsel's brief meets the requirements of Anders as it presents a thorough, professional evaluation of the record showing why there are no arguable grounds for advancing an appeal. 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."); 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) and Kelly v. State, 436 S.W.3d 313, 319-22 (Tex. Crim. App. 2014), Gonzalez's counsel carefully discussed why, under controlling authority, there is no reversible error in the trial court's judgment. Gonzalez's counsel also informed this Court that he has: (1) notified Gonzalez that he has filed an Anders brief and a motion to withdraw; (2) provided Gonzalez with copies of both pleadings; (3) informed Gonzalez of his rights to file a pro se response, to review the record preparatory to filing that response, and to seek discretionary review if we conclude that the appeal is frivolous; and (4) provided Gonzalez with a form motion for pro se access to the appellate record, lacking only Gonzalez's signature. See Anders, 386 U.S. at 744; Kelly, 436 S.W.3d at 319-20; Stafford, 813 S.W.2d at 510 n.3; see also In re Schulman, 252 S.W.3d at 409 n.23.
Gonzalez filed a motion for pro se access to the appellate record. He received the record via the United States Postal Service on 28 October 2015. An adequate amount of time has passed, and Gonzalez has not filed a pro se response.
II. INDEPENDENT REVIEW
Upon receiving an Anders brief, we must conduct a full examination of all the proceedings to determine whether the appeal is wholly frivolous. Penson v. Ohio, 488 U.S. 75, 80 (1988). We have reviewed the record and counsel's brief and we have found no reversible error. 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 it considered the issues raised in the brief and reviewed the record for reversible error but found none, the court of appeals met the requirements of Texas Rule of Appellate Procedure 47.1."); Stafford, 813 S.W.2d at 509.
We affirm the judgment of the trial court.
III. MOTION TO WITHDRAW
In accordance with Anders, Gonzalez's appellate counsel has filed a motion to withdraw. See Anders, 386 U.S. at 744: see also ln 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 the motion to withdraw. Within five days of the date of this opinion, counsel is ordered to send a copy of the opinion and judgment to Gonzalez 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).
No substitute counsel will be appointed. Should appellant wish to seek further review of this case by the Texas Court of Criminal Appeals, he must either retain an attorney to file a petition for discretionary review or file a pro se petition for discretionary review. Any petition for discretionary review must be filed within thirty days from the date of either this opinion or the last timely motion for rehearing or timely motion for en banc reconsideration that was overruled by this Court. See TEX. R. APP. P. 68.2. Any petition for discretionary review must be filed with the clerk of the Court of Criminal Appeals, see TEX. R. APP. P. 68.3, and should comply with the requirements of Texas Rule of Appellate Procedure 68.4. See id. R. 68.4. --------
Nora L. Longoria
Justice Do not publish.
TEX. R. APP. P. 47.2(b). Delivered and filed the 7th day of January, 2016.