Opinion
NUMBER 13-15-00179-CR
02-11-2016
FERNANDO AVILA LUNA A/K/A ERIK LUNA, Appellant, v. THE STATE OF TEXAS, Appellee.
On appeal from the 214th District Court of Nueces County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Benavides
Memorandum Opinion by Justice Rodriguez
Appellant Fernando Avila Luna a/k/a Erik Luna pleaded guilty to one count of aggravated sexual assault of a child, a first-degree felony, see TEX. Penal Code ANN. § 22.02 (West, Westlaw through 2015 R.S.), and one count of sexual assault of a child, a second-degree felony. See id. § 22.011 (West, Westlaw through 2015 R.S.). After accepting Luna's pleas of guilty and admitting evidence offered by the State, the trial court found Luna guilty of both counts. After a sentencing hearing, the trial court sentenced Luna to fifty years for the aggravated sexual assault of a child and fifteen years for the sexual assault of a child, with the sentences to run concurrently. This appeal followed.
Determining that there are no issues that might arguably support an appeal, counsel filed an Anders brief in which she reviewed the merits, or lack thereof, of the appeal. We affirm the judgment of the trial court.
I. COMPLIANCE WITH ANDERS
Pursuant to Anders v. California, Luna's counsel filed a brief stating that, after carefully examining the record and researching relevant case law, she "concluded that Luna's appeal concerning any error in his plea or sentencing cannot be substantiated." See 386 U.S. 738, 744-45 (1967). Counsel's brief meets the requirements of Anders as it presents a professional evaluation showing why there are no meritorious 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.") (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) and Kelly v. State, 436 S.W.3d 313, 318-19 (Tex. Crim. App. June 25, 2014), counsel has demonstrated that she has complied with the requirements of Anders by discussing why, under controlling authority, any appeal from the judgment would be without merit and frivolous. Counsel has also informed this Court, in writing, that she has: (1) notified Luna that counsel has filed an Anders brief and a motion to withdraw as his counsel; (2) provided Luna with copies of the pleadings; (3) informed Luna of his right to file a pro se response, to review the record preparatory to filing that response, and to seek discretionary review if the court of appeals concludes that the appeal is frivolous; and (4) provided Luna with a form motion for pro se access to the appellate record, with instructions to file the motion within ten days. See Anders, 386 U.S. at 744; Kelly, 436 S.W.3d at 318-19; Stafford, 813 S.W.2d 503, 510 n.3; see also In re Schulman, 252 S.W.3d at 409 n.23. An adequate time has passed, and Luna has not filed either a timely motion seeking pro se access to the appellate record or a motion for extension of time to do so. And he has not filed a pro se brief.
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) (orig. proceeding) (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, this Court must conduct a full examination of all proceedings to determine whether the case is wholly frivolous. Pension v. Ohio, 488 U.S. 75, 80 (1988). We have reviewed the entire record, 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, counsel has asked this Court to grant her motion to withdraw as counsel for Luna. 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 that this Court carried with the case on December 3, 2015. Within five days of the date of this Court's opinion, counsel is ordered to send a copy of the opinion and judgment to Luna and to advise Luna of his right to pursue 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 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 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 Texas Court of Criminal Appeals. See id. at R. 68.3. Any petition for discretionary review should comply with the requirements of Texas Rule of Appellate Procedure 68.4. See id. at R. 68.4. --------
NELDA V. RODRIGUEZ
Justice Do not publish.
TEX. R. APP. P. 47.2(b). Delivered and filed the 11th day of February, 2016.