Opinion
NUMBER 13-16-00630-CR
11-01-2018
DONEL SALAZAR JR., Appellant, v. THE STATE OF TEXAS, Appellee.
On appeal from the 370th District Court of Hidalgo County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Longoria and Hinojosa
Memorandum Opinion by Justice Longoria
Appellant Donel Salazar Jr. was convicted of two counts of continuous sexual assault of a child. See TEX. PENAL CODE ANN. § 21.02 (West, Westlaw through 1st 2017 C.S.). The trial court sentenced him to thirty-five years' imprisonment. Salazar's court-appointed counsel has filed an Anders brief. See Anders v. California, 386 U.S. 738, 744 (1967). We affirm.
I. ANDERS BRIEF
Pursuant to Anders, Salazar'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), Salazar's counsel carefully discussed the evidence adduced at the trial, pointed out where pertinent testimony may be found in the record, referred to pages in the record where objections were made, the nature of the objection, the trial court's ruling, and discussed either why the trial court's ruling was correct or why Salazar was not harmed by the ruling of the court. Counsel has informed this Court, in writing, that counsel has: (1) notified Salazar that counsel has filed an Anders brief and a motion to withdraw; (2) provided Salazar with a copy of the Anders brief and motion to withdraw; (3) informed Salazar of his rights to file a pro se response and review the record preparatory to filing that response; and (4) provided Salazar with a form motion for pro se access to the appellate record with instructions to file the motion in this Court. 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 adequate time has passed, and Salazar has not filed a response.
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).
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 may determine the appeal is wholly frivolous and issue an opinion after reviewing the record and finding no reversible error. Bledsoe v. State, 178 S.W.3d 824, 826-827 (Tex. Crim. App. 2005). Alternatively, if we determine that arguable grounds for appeal exist, we must remand for the appointment of new counsel to brief those issues. Id. at 827.
We have conducted an independent review of the record, including appellate counsel's brief and Salazar's pro se response, and find no reversible error. See Anders, 386 U.S. at 744; Garner v. State, 300 S.W.3d 763, 766 (Tex. Crim. App. 2009); Bledsoe, 178 S.W.3d at 826-27. We agree with counsel that the record presents no arguably meritorious grounds for review and the appeal is frivolous. See Garner, 300 S.W.3d at 766; Bledsoe, 178 S.W.3d at 827.
III. MOTION TO WITHDRAW
In accordance with Anders, Salazar's attorney has asked this Court for permission to withdraw as counsel. 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 Salazar 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. If Salazar seeks 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 was overruled by this Court. See TEX. R. APP. P. 68.2. Any petition for discretionary review should comply with the requirements of Texas Rule of Appellate Procedure 68.4. See id. R. 68.4.
IV. CONCLUSION
Counsel's motion to withdraw is granted. We affirm the trial court's judgment.
NORA L. LONGORIA
Justice Do not publish.
TEX. R. APP. P. 47.2(b). Delivered and filed the 1st day of November, 2018.