Opinion
01-20-00050-CR
08-25-2022
ROLANDO L. OLIVA RODRIGUEZ, Appellant v. THE STATE OF TEXAS, Appellee
Do not publish. Tex.R.App.P. 47.2(b).
On Appeal from the 182nd Judicial District Court Harris County, Texas Trial Court Case No. 1562399
Panel consists of Justices Landau, Guerra, and Farris.
MEMORANDUM OPINION
Sarah Beth Landau, Justice
Appellant, Rolando L. Oliva Rodriguez, appeals the trial court's judgment adjudicating him guilty of the felony offense of assault - continuing family violence and sentencing him to nine years' confinement. See Tex. Penal Code § 22.01(b)(2)(B). His appointed counsel on appeal has filed a motion to withdraw, along with a brief stating that there are no nonfrivolous issues for appeal. See Anders v. California, 386 U.S. 738, 741-42 (1967). Neither appellant nor the State responded to counsel's Anders brief. We affirm the trial court's judgment and grant counsel's motion to withdraw.
Background
In March 2018, appellant pleaded guilty to assault - continuing family violence and was placed on deferred adjudication community supervision. In December 2019, the State moved to adjudicate guilt, and appellant pleaded true to violating the terms and conditions of his community supervision. In January 2020, appellant filed a pro se letter stating that he believed he would be sentenced to five years' confinement, not nine years, and that his attorney at the time of his plea did not speak Spanish well. Appellant appealed, and the trial court appointed appellate counsel on appellant's request.
In September 2020, we abated the appeal and remanded to the trial court to determine whether appellant has the right to appeal. The appeal was reinstated in April 2022, after we received a supplemental clerk's record containing the trial court's certification of appellant's right to appeal.
Anders Procedures
When appointed counsel believes a criminal defendant's appeal is frivolous, counsel may file both a motion to withdraw and an Anders brief. In re Schulman, 252 S.W.3d 403, 406 (Tex. Crim. App. 2008); see Anders, 386 U.S. at 741-42. An Anders brief reflects the fact that counsel has adequately researched the case before deciding to withdraw. In re Schulman, 252 S.W.3d at 407. It sets out counsel's due diligence, informs the client, and provides a roadmap for the appellate court's review of the record. Id. at 407. It also assists the client by providing citations to the record if he wishes to exercise his right to file a pro se brief. Id. at 407-08. An Anders brief is appropriate only when counsel has mastered the record and the evidence and determines that there are no nonfrivolous grounds for appeal. Id. If counsel finds the appeal involves potentially meritorious grounds, counsel must file a merits brief with the court. Id. at 407 n.9; Stafford v. State, 813 S.W.2d 503, 509 (Tex. Crim. App. 1991).
If counsel determines that potential grounds for appeal exist but those grounds would be frivolous, counsel must explain those grounds with citations to applicable legal authority and pertinent evidence. In re Schulman, 252 S.W.3d at 407. Counsel should "point out where pertinent testimony may be found in the record, refer to pages in the record where objections were made, the nature of the objection, the trial court's ruling, and discuss either why the trial court's ruling was correct or why the appellant was not harmed by the ruling of the court." High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. 1978). The purpose of this is to convince the appellate court that counsel has given due consideration to any potential ground for appeal before dismissing it as frivolous. See In re Schulman, 252 S.W.3d at 407-09 (appellate courts will not grant motion to withdraw if Anders brief does not show record was carefully reviewed); High, 573 S.W.2d at 811 (describing importance of disclosing both legal authority and potential grounds for appeal).
Even when counsel believes that there are no grounds that might convince an appellate court, counsel must still file an Anders brief, and it must direct the court to the portions of the record that could have created error but did not. In re Schulman, 252 S.W.3d at 406-07. Counsel may not provide a mere conclusory statement that no grounds for appeal exist. See id.; see also Anders, 386 U.S. at 742. If, after conducting an independent review, the appellate court concludes that "appellate counsel has exercised professional diligence in assaying the record for error" and agrees the appeal is frivolous, it should grant counsel's motion to withdraw, Meza v. State, 206 S.W.3d 684, 689 (Tex. Crim. App. 2006), and affirm the trial court's judgment. In re Schulman, 252 S.W.3d at 409.
Here, counsel's brief meets the Anders requirements by presenting a professional evaluation of the record and supplying us with references to the record and legal authority. See Anders, 386 U.S. at 74; see also High, 573 S.W.2d at 812. Counsel has discussed why the record contains no reversible error. Counsel specifically briefed: (1) ineffective assistance of counsel resulting in an involuntary plea because the immigration admonishment did not contain any statement about the effect of a plea of guilty to a felony family-violence offense; (2) ineffective assistance of counsel because of a waiver of an interpreter when appellant entered his plea; and (3) an unaddressed motion for new trial.
After appellate counsel moves to withdraw because an appeal is frivolous and fulfills the Anders requirements, we must independently examine the record to see if there is any arguable ground that might be raised on the appellant's behalf. Stafford, 813 S.W.2d at 511. When performing this evaluation, we consider the record, the arguments raised in the Anders brief, and any issues that the appellant might raise in a pro se brief. In re Schulman, 252 S.W.3d at 409. Only afterward may we grant counsel's motion to withdraw. See Penson v. Ohio, 488 U.S. 75, 82- 83 (1988).
We have scrutinized counsel's Anders brief and independently reviewed the entire record in this appeal. We conclude that no reversible error exists in the record, there are no arguable grounds for review, and the appeal is frivolous. See Anders, 386 U.S. at 744 (reviewing court-not counsel-determines, after full examination of record, whether arguable grounds for review exist); Bledsoe v. State, 178 S.W.3d 824, 827-28 (Tex. Crim. App. 2005) (reviewing court must determine whether arguable grounds for review exist).
Conclusion
Accordingly, we affirm the trial court's judgment and grant counsel's motion to withdraw.
Appointed counsel still has a duty to inform appellant of the result of this appeal and that he may, on his own, pursue discretionary review in the Texas Court of Criminal Appeals. See Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005).