Roman Luna Rodriguez, Jr. v. State ( 2011 )

NUMBER 13-10-00385-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
ROMAN LUNA RODRIGUEZ JR., Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 398th District Court
of Hidalgo County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Benavides
Memorandum Opinion by Justice Benavides
Roman Luna Rodriguez Jr., appellant, pleaded guilty to aggravated sexual
assault of a child and was sentenced to ten years confinement in June 2003. See TEX.
PENAL CODE ANN. ' 22.021(a)(2)(B) (West Supp. 2010). In 2010, Rodriguez filed a pro
se motion seeking DNA testing and examination under code of criminal procedure,
article 64.01. See TEX. CODE CRIM. PROC. ANN. art. 64.01 (West Supp. 2010). The
motion was denied. Rodriguez then filed a pro se notice of appeal. This court abated
the matter and remanded to the trial court for a hearing on indigence and appointment of
appellate counsel. After a hearing, the trial court appointed appellate counsel.
Rodriguez’s appellate counsel, concluding that "there are no arguable grounds to
be advanced on appeal," filed an Anders brief in which he reviewed the merits, or lack
thereof, of the appeal. Thereafter, Rodriguez filed a pro se response. We affirm.
I. DISCUSSION
Pursuant to Anders v. California, 386 U.S. 738, 744 (1967), appellant=s
court-appointed appellate counsel has filed a brief with this Court, stating that his review
of the record yielded no grounds or error upon which an appeal can be predicated.
Although counsel=s brief does not advance any arguable grounds of error, it does
present a professional evaluation of the record demonstrating why there are no arguable
grounds to be advanced on appeal. See In re Schulman, 252 S.W.3d 403, 407 n.9
(Tex. Crim. App. 2008) (AIn 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), appellant's counsel has carefully discussed why, under controlling authority,
there are no errors in the trial court's judgment. Counsel has informed this Court that he
has: (1) examined the record and found no arguable grounds to advance on appeal; (2)
served a copy of the brief and counsel=s motion to withdraw on appellant; and (3)
informed appellant of his right to review the record and to file a pro se response within
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thirty days.1 See Anders, 386 U.S. at 744; Stafford, 813 S.W.2d at 510 n.3; see also In
re Schulman, 252 S.W.3d at 409 n.23. Rodriguez also filed a pro se response.
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, counsel's brief and
Rodriguez’s pro se response and have found nothing that would arguably support an
appeal. See Bledsoe v. State, 178 S.W.3d 824, 826-28 (Tex. Crim. App. 2005) (ADue 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, 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.) (noting that A[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
1
The Texas Court of Criminal Appeals has held that Athe 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.)).
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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 file a petition for discretionary review. 2 See TEX. R. APP. P. 48.4.
________________________
GINA M. BENAVIDES,
Justice
Do not publish.
TEX. R. APP. P. 47.2 (b).
Delivered and filed the
21st day of July, 2011.
2
No substitute counsel will be appointed. Should appellant wish to seek 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
that was overruled by this Court. See TEX. R. APP. P. 68.2. Any petition for discretionary review must be
filed with this Court, after which it will be forwarded to the Texas Court of Criminal Appeals. See TEX. R.
APP. P. 68.3, 68.7. Any petition for discretionary review should comply with the requirements of Rule 68.4
of the Texas Rules of Appellate Procedure. See TEX. R. APP. P. 68.4.
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