Opinion
NUMBER 13-15-00068-CR
11-19-2015
CRISSY NICOLE GUERRA, Appellant, v. THE STATE OF TEXAS, Appellee.
On appeal from the 404th District Court of Cameron County, Texas.
MEMORANDUM OPINION
Before Justices Garza, Benavides and Longoria
Memorandum Opinion by Justice Longoria
In August of 2013, appellant Crissy Nicole Guerra pled no contest to one count of intoxication manslaughter, a second-degree felony. See TEX. PENAL CODE ANN. § 49.08 (West, Westlaw through 2015 R.S.). The trial court assessed sentence at ten years' imprisonment in the Texas Department of Criminal Justice. In November of 2013, the trial court granted appellant's motion for shock probation and placed her on community supervision for a period of ten years. See TEX. CODE CRIM. PROC. ANN. art. 42.12, § 5(f)(2) (West, Westlaw through 2015 R.S.).
In November of 2014, the State filed a motion to revoke alleging nine violations of the terms and conditions of her supervision. The trial court held a hearing on the State's motion at which appellant admitted to consuming alcohol and not remaining away from bars or nightclubs, violations of the conditions of her supervision. At the end of the hearing, the trial court granted the State's motion and imposed the original term of ten years' imprisonment in the Texas Department of Criminal Justice. As discussed below, appellant's court-appointed counsel has filed a motion to withdraw accompanied by an Anders brief. See Anders v. California, 386 U.S. 738, 744 (1967). We affirm.
I. ANDERS BRIEF
Pursuant to Anders v. California, appellant's court-appointed appellate counsel has 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. See id. 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) and Kelly v. State, 436 S.W.3d 313, 319 (Tex. Crim. App. 2014), appellant's counsel carefully discussed why, under controlling authority, there is no reversible error in the trial court's judgment. Counsel has informed this Court, in writing, that counsel has: (1) notified the appellant that counsel has filed an Anders brief and a motion to withdraw; (2) informed the appellant of her rights to file a pro se response, review the record preparatory to filing that response, and seek discretionary review if the Court concludes that the appeal is frivolous; and (3) provided appellant with a form motion for pro se access to the appellate record, lacking only the appellant's signature and the date and including the mailing address for the court of appeals, with instructions to file the motion within ten days. See Anders, 386 U.S. at 744; Kelly, 436 S.W.3d at 319; 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 motion for access to the appellate record or a motion for extension of time to do so. No pro se response was filed, and the State has also not filed a brief.
Counsel informed us that he specifically considered whether: (1) sufficient evidence supported the court's decision to revoke appellant's supervision; (2) the court's rulings on any motions could form the basis of an arguable issue; (3) the record revealed fundamental error; (4) appellant could mount a viable claim for ineffective assistance of counsel, see Strickland v. Washington, 466 U.S. 668, 687 (1984); (5) the sentence was within the applicable punishment range; and (6) appellant received credit for all the time she previously spent imprisoned. Counsel concluded that none of these issues were meritorious.
The Texas Court of Criminal Appeals has held that "the pro se response need not comply with the rules of appellate procedure in order to be considered. Rather, the response should identify for the court those issues which the indigent appellant believes the court should consider in deciding whether the case presents any meritorious issues." In re Schulman, 252 S.W.3d 403, 409 n.23 (Tex. Crim. App. 2008) (quoting Wilson v. State, 955 S.W.2d 693, 696-97 (Tex. App.—Waco 1997, no pet.)).
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 we 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. We have found no reversible error in the record. We accordingly 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.) ("[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 her 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).
No substitute counsel will be appointed. Should appellant wish to seek further review of this case by the Texas Court of Criminal Appeals, she 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 and should comply with the requirements of Texas Rule of Appellate Procedure 68.4. See TEX. R. APP. P. 68.3, 68.4.
NORA L. LONGORIA,
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the 19th day of November, 2015.