Ricardo Rodriguez v. State ( 2018 )

NUMBER 13-17-00340-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
RICARDO RODRIGUEZ, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 347th District Court
of Nueces County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Benavides and Longoria
Memorandum Opinion by Chief Justice Valdez
Appellant Ricardo Rodriguez was charged by indictment with aggravated assault
with a deadly weapon, a second-degree felony. See TEX. PENAL CODE ANN. § 22.02(a)(2)
(West, Westlaw through 2017 1st C.S.). Specifically, the State’s indictment alleged that
Rodriguez “intentionally or knowingly threaten[ed] [G.P.] 1 with imminent bodily injury by
threatening to kill [G.P.], and . . . use[d] or exhibit[d] a deadly weapon, to-wit: gasoline
and a source of ignition, during the commission of said assault.” Rodriguez pleaded guilty
to the charged offense, and the trial court placed him on deferred adjudication community
supervision for six years, subject to the following relevant conditions: (1) Rodriguez was
to remain in Nueces County unless permitted to leave the county by the court; (2)
Rodriguez was to complete a Batterers Intervention and Prevention (BIP) program; 2 and
(3) Rodriguez was to refrain from making contact with G.P.
Approximately two years after being placed on community supervision, the State
filed a motion to revoke, alleging that Rodriguez had, among other things, violated the
conditions of community supervision listed above by: (1) leaving Nueces County without
court permission; (2) failing to complete to the BIP program; and (3) making contact with
G.P. Rodriguez pleaded true to these allegations, and the trial court sentenced him to
seven years in prison. This appeal followed.
Rodriguez’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, Rodriguez’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 reversible error upon which an appeal can be predicated.
1 We will refer to the assault complainant using the pseudonym “G.P.” to protect the complainant’s
identity.
2
A Batterers Intervention and Prevention (BIP) program is a group counseling program that
specializes in family violence intervention and prevention of battering behaviors in an intimate relationship,
marriage, or family. See TEX. CRIM. PROC. CODE ANN. § 42.141 (West, Westlaw through 2017 1st C.S.).
2
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) (orig. proceeding) (“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) and Kelly v. State, 436 S.W.3d 313, 319–22 (Tex. Crim. App. 2014),
Rodriguez’s counsel carefully discussed why, under controlling authority, there is no
reversible error in the trial court’s judgment. Rodriguez’s counsel has also informed this
Court that he has (1) notified Rodriguez that he has filed an Anders brief and a motion to
withdraw; (2) provided Rodriguez with copies of both pleadings; (3) informed Rodriguez
of his rights to file a pro se response, to review the record preparatory to filing that
response, and to seek discretionary review in the Texas Court of Criminal Appeals if this
Court finds that the appeal is frivolous; and (4) provided Rodriguez 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 319–20, Stafford, 813 S.W.2d at 510 n.3;
see also In re Schulman, 252 S.W.3d at 409 n.23. An adequate time has passed, and
Rodriguez has not filed a response.
II. INDEPENDENT REVIEW
3
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). After reviewing the entire record, as well as the Anders brief, we find
nothing that would arguably support an appeal. See Bledsoe v. State, 178 S.W.3d 824,
827–28 (Tex. Crim. App. 2005) (“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. Accordingly, we affirm the
judgment of the trial court.
III. MOTION TO WITHDRAW
In accordance with Anders, Rodriguez’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 Rodriguez and to advise him
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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).
/s/ Rogelio Valdez
ROGELIO VALDEZ
Chief Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
15th day of March, 2018.
3 No substitute counsel will be appointed. If Rodriguez 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 that was overruled by this Court. See TEX. R. APP. P. 68.2. A petition for discretionary
review must be filed with the clerk of the Court of Criminal Appeals. See id. R. 68.3. Any petition for
discretionary review should comply with the requirements of Texas Rule of Appellate Procedure 68.4. See
id. R. 68.4.
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