Opinion
No. 05-19-00383-CR
05-11-2020
ALEJANDRO VALLES, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 265th Judicial District Court Dallas County, Texas
Trial Court Cause No. F17-70329-R
MEMORANDUM OPINION
Before Justices Schenck, Osborne, and Reichek
Opinion by Justice Schenck
Alejandro Valles appeals his conviction for burglary of a building. We affirm the trial court's judgment. Because all issues are settled in the law, we issue this memorandum opinion. TEX. R. APP. P. 47.4.
BACKGROUND
Appellant was indicted for the offense of burglary of a building. Appellant pleaded guilty to the charged offense and judicially confessed to having committed the offense. Appellant elected to have a jury assess punishment.
At the punishment hearing, appellant again pleaded guilty to the charged offense and entered pleas of true to two felony enhancement paragraphs. The State called two witnesses to testify and appellant testified on his own behalf. The State's first witness was Rosalva Bocanegra, the owner of the restaurant appellant burglarized. She testified that around 1:00 in the morning, on November 16, 2016, she received notification that the alarm in her restaurant was going off. In responding to the alarm, she discovered that her restaurant had been broken into. She notified the police and provided them with surveillance video recording of the restaurant from that night. That surveillance tape was admitted into evidence without objection and played to the jury. The footage depicted a car approaching the restaurant, appellant stepping out of the vehicle crouching down and peering through the windows, rocks being thrown through windows of the restaurant, and appellant removing a television from a wall. Bocanegra valued the damage to her restaurant and the replacement value of the stolen items to be around $1,500.
The State then called Dallas police detective Phillip Gordon. He testified that after obtaining a license plate number from the surveillance video, he located the car's former owner who indicated that he previously sold the car to a family member's son. Detective Gordon played the surveillance video for the former owner. He immediately identified appellant as the person depicted in the footage. Appellant's judicial confession and stipulation of evidence of prior convictions were admitted into evidence without objection. Appellant took the stand and described being incarcerated twice before he committed his current offense, having a 20-year drug addiction, and having obtained his G.E.D. and license as a certified forklift operator. He also stated that he was high on cocaine and methamphetamines during the commission of the burglary. During cross-examination, appellant acknowledged being revoked while on probation for prior convictions, leaving his home because he was ashamed of his drug use, and attending a Substance Abuse Felony Punishment Facility on two prior occasions. He also indicated that although he was an addict he never sold drugs. Finally, appellant claimed that his two 1998 convictions for assault were alcohol related. At the conclusion of the punishment hearing, the jury assessed punishment at nine year's confinement. The trial court certified appellant's right to appeal and appellant timely filed his notice of appeal.
Burglary of a building is a state jail felony punishable by 180 days to two years is state jail and a fine up to $10,000. TEX. PENAL CODE ANN. § 12.35(a)(b). In this case, the offense was enhanced by two prior felony convictions, thus the applicable punishment range was two to twenty years. Id. § 12.425(b).
DISCUSSION
Appellant's appointed counsel filed an Anders brief and motion to withdraw stating that she diligently reviewed the entire appellate record and that, in her opinion there are no meritorious issues on appeal. See Anders v. California, 386 U.S. 738, 744 (1967). Counsel's brief meets the requirements of Anders as it presents a professional evaluation showing why there are no non-frivolous grounds for advancing an appeal. See In re Schulman, 252 S.W.3d 403, 407 n.9 (Tex. Crim. App. 2008) (orig. proceeding).
In compliance with High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel Op.] 1978), appellant's counsel has carefully discussed why, under controlling authority, an appeal from the judgment and sentence is without merit and frivolous because the record reflects no reversible error and, in her opinion, there are no grounds upon which an appeal can be predicated. Counsel specifically noted, from her review of the following, that she found no issues presented for review regarding (1) jurisdiction, (2) sufficiency of the indictment, (3) sufficiency of the evidence, (4) voluntariness of the plea, and (5) the range of punishment. In addition, counsel reviewed the performance of trial counsel and concluded the record reflects that trial counsel met the standards set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984) and that he exhibited the skill, training and expertise that one could reasonably expect from a competent attorney at trial. In addition, counsel noted that appellant's trial counsel presented mitigating evidence of appellant's chronic drug addiction, his attempts at sobriety, and his strong family ties.
The indictment tracked the statute and thus conferred jurisdiction on the court.
The indictment contained all of the elements of the offense. TEX. PENAL CODE ANN. § 32.02(c)(1).
The record shows appellant freely and voluntarily enter his plea after the court inquired concerning his understanding of the consequences and confirmed that he was entering the pleas voluntarily without pressure from anyone.
The jury's assessment of punishment was within the applicable range.
Counsel delivered a copy of the brief to appellant, and by letter dated October 18, 2019, we advised appellant of his right to file a pro se response by November 27, 2019. See Kelly v. State, 436 S.W.3d 313, 319-21 (Tex. Crim. App. 2014) (noting appellant has right to file pro se response to Anders brief filed by counsel). We advised appellant that failure to file a pro se response by that date would result in the case being submitted on the Anders brief alone. Appellant did not file a response.
Upon receiving an Anders brief, this Court must conduct a full examination of all 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 the appeal. See Bledsoe v. State, 178 S.W.3d 824, 826-28 (Tex. Crim. App. 2005) (explaining appellate court's duty in Anders cases). Accordingly, we affirm the trial court's judgments.
In accordance with Anders, counsel has filed a motion to withdraw as counsel from this case. See Anders, 386 U.S. at 744; 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."). 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 the opinion and judgment to appellant and to advise appellant of his right to pursue a petition for review. See TEX. R. APP. P. 48.4.
CONCLUSION
We affirm the trial court's judgment.
/David J. Schenck/
DAVID J. SCHENCK
JUSTICE DO NOT PUBLISH
TEX. R. APP. P. 47
190383F.U05
JUDGMENT
On Appeal from the 265th Judicial District Court, Dallas County, Texas
Trial Court Cause No. F-1770329-R.
Opinion delivered by Justice Schenck. Justices Osborne and Reichek participating.
Based on the Court's opinion of this date, Valencia Bush's motion to withdraw as counsel is GRANTED, and the judgment of the trial court is AFFIRMED. Judgment entered this 11th day of May, 2020.