Carmina Padroz v. State ( 2015 )

NUMBERS 13-15-00195-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
CARMINA PADROZ, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 36th District Court
of Live Oak County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Benavides and Perkes
Memorandum Opinion by Justice Perkes
Appellant Carmina Padroz appeals her conviction of possession of a controlled
substance: marijuana, a second degree felony. TEX. HEALTH & SAFETY CODE ANN. §
481.121(b)(5) (West, Westlaw through Ch. 46 2015 R.S.). Appellant judicially confessed
to the offense and was placed on deferred-adjudication community supervision for a
period of ten years. The State subsequently moved to revoke appellant’s community
supervision, alleging appellant violated numerous terms of community supervision
conditions.1 Specifically, the State’s motion to revoke alleged appellant: (1) failed to
report in person during the term of supervision; (2) failed to submit to random urinalysis;
(3) failed to attend alcoholics anonymous or narcotics anonymous meetings; (4) failed to
attend sanctioned and sponsored peer support group meetings; (5) failed to make
monthly probation payments; (6) failed to pay court costs; (7) failed to pay restitution; and
(8) failed to pay the monetary fine. After appellant plead true to every allegation, the trial
court found appellant guilty and sentenced her to six years in the Texas Department of
Criminal Justice, Institutional Division. Appellant’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 v. California, appellant’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
1 On January 17, 2002, the trial court allowed a “travel permit”, granting appellant permission to
travel to Tulane, California, for the purpose of residency from January 16, 2002 until March 16, 2002.
Appellant failed to return to Texas, and the State filed a motion to adjudicate appellant’s guilt and to revoke
her community supervision. On December 14, 2014, appellant was located and arrested in Arizona. In
2015, she was extradited from Arizona to Texas.
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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) and Kelly v. State, 436 S.W.3d 313, 318–19 (Tex. Crim. App. 2014),
appellant’s counsel carefully discussed why, under controlling authority, there is no
reversible error in the trial court's judgment. Counsel has informed this Court, in writing,
that counsel has: (1) notified the appellant that counsel has filed an Anders brief and a
motion to withdraw; (2) provided the appellant with copies of both pleadings; (3) informed
the appellant of appellant’s rights to file a pro se response,2 review the record preparatory
to filing that response, and seek discretionary review if the court of appeals concludes
that the appeal is frivolous; and (4) provided appellant with a form motion for pro se
access to the appellate record, lacking only the appellant’s signature and the date and
including the mailing address for the court of appeals, 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 at 510 n.3; see also In re Schulman, 252 S.W.3d at 409 n.23.
In this case, appellant filed neither a timely motion seeking pro se access to the
appellate record nor a motion for extension of time to do so. No pro se brief was filed.
II. INDEPENDENT REVIEW
Upon receiving an Anders brief, we must conduct a full examination of all the
2 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)
(quoting Wilson v. State, 955 S.W.2d 693, 696–97 (Tex. App.—Waco 1997, no pet.)).
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proceedings to determine whether the case is wholly frivolous. Penson v. Ohio, 488 U.S.
75, 80 (1988). A court of appeals has two options when an Anders brief and a
subsequent pro se response are filed. After reviewing the entire record, it may: (1)
determine that the appeal is wholly frivolous and issue an opinion explaining that it finds
no reversible error; or (2) determine that there are arguable grounds for appeal and
remand the case to the trial court for appointment of new appellate counsel. Bledsoe v.
State, 178 S.W.3d 824, 826–27 (Tex. Crim. App. 2005). If the court finds arguable
grounds for appeal, it may not review those grounds until after new counsel has briefed
those issues on appeal. Id.
We reviewed the entire record and counsel’s brief, and found nothing that would
arguably support an appeal. See id. at 827-28 (“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. There is no
reversible error in the record. Accordingly, the judgment of the trial court is affirmed.
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.) (“[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
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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 appellant and to advise
him of his right to file a petition for discretionary review.3 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).
GREGORY T. PERKES
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
3rd day of September, 2015.
3 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 or
timely motion for en banc reconsideration that was overruled by this Court. See TEX. R. APP. P. 68.2.
Effective September 1, 2011, any petition for discretionary review must be filed with the clerk of the Court
of Criminal Appeals. See TEX. R. APP. P. 68.3. Any petition for discretionary review should comply with
the requirements of Texas Rule of Appellate Procedure 68.4. See TEX. R. APP. P. 68.4.
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