Jose Rafael Guevara v. State ( 2009 )

  Opinion issued February 26, 2009  

In The  

Court of Appeals

For The  

First District of Texas

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NO. 01-07-00989-CR

NO. 01-07-00990-CR

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JOSE RAFAEL GUEVARA, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 351st District Court

Harris County, Texas

Trial Court Cause Nos. 1080528, 1096706

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MEMORANDUM OPINION

Appellant, Jose Rafael Guevara, without an agreed punishment recommendation from the State, pleaded guilty to the offenses of theft ⁽¹⁾ and unauthorized use of a motor vehicle. ⁽²⁾ The trial court sentenced appellant to concurrent sentences of confinement for five years for theft and two years for unauthorized use of a motor vehicle. Appellant filed a timely notice of appeal. Appellant's counsel has filed a brief stating that the record presents no reversible error and that the appeal is both frivolous and without merit. See Anders v. California, 386 U.S. 738, 744 87 S. Ct 1396, 1400 (1967). We determine whether the brief meets the requirements of Anders by presenting a professional evaluation of the record and detailing why there are no meritorious grounds for reversal. Id. at 744, 87 S. Ct. at 1400; see also High v. State, 573 S.W.2d 807, 810 (Tex. Crim. App. 1978). We affirm.

The Anders Brief Standard  

When this Court receives a brief from defendant's counsel asserting that no arguable grounds for appeal exist, we must determine that issue independently by conducting our own review of the entire record. Anders, 386 U.S. at 744, 87 S. Ct. at 1400; Stafford, 813 S.W.2d at 511. We consider any pro se response that the defendant files along with his appointed counsel's brief. See Bledsoe, 178 S.W.3d at 828.

Our role in this Anders appeal is limited to determining whether arguable grounds for appeal exist. Id. at 827. When filing an "Anders Brief," appellant's counsel must:

discuss the evidence adduced at the trial, point out where pertinent testimony may be found in the record, refer to pages in the record where objections were made, the nature of the objection, the trial court's ruling, and discuss either why the trial court's ruling was correct or why the appellant was not harmed by the ruling of the court.

High, 573 S.W.2d at 813.

If we determine that arguable grounds for appeal exist, we must abate the appeal and remand the case to the trial court to allow the court-appointed attorney to withdraw. Id. The trial court must then either appoint another attorney to present all arguable grounds for appeal or, if the appellant wishes, allow the appellant to proceed pro se. Id. If we determine that there are arguable grounds for appeal, the appellant is entitled to have new counsel address the merits of the issues raised. Id. If we determine that the appeal is without merit, we may affirm the trial court's judgment by issuing an opinion in which we explain that we have reviewed the record and have found no reversible error. Id. at 826-28. The holding that there are no arguable grounds for appeal is subject to challenge by an appellant by a pro se petition for discretionary review filed in the Court of Criminal Appeals. Id. at 827 & n.6. Appellant's counsel on appeal has a duty to inform the appellant of his right to file such a petition. Tex. R. App. P. 48.4; Blesdoe, 178 S.W.3d at 827. This duty is purely "educational," however, and failure to do so has not prevented Texas courts from granting a motion to withdraw due to a frivolous appeal. See, e.g., Ex parte Owens, 206 S.W.3d 670 (Tex. Crim. App. 2006); Onofre v. State, 193 S.W.3d 148, 149 (Tex. App.--Houston [1st Dist.] 2006, no pet.); Mitchell v. State, 193 S.W.3d 153, 156 (Tex. App.--Houston [1st Dist.] 2006, no pet.); Le v. State, 186 S.W.3d 55, 59 (Tex. App.--Houston [1st Dist.] 2005, no pet.).

In accordance with Anders, we have reviewed both the entire record and the brief of appellant's counsel, and we conclude that no reversible error exists. We note that appellant's appointed counsel still has a duty to inform appellant of the result of this appeal and that appellant may, on his own, pursue discretionary review in the Texas Court of Criminal Appeals. See Onofre, 193 S.W.3d at 149.

Conclusion

We affirm the judgment of the trial court and grant appointed counsel's motion to withdraw. Appointed counsel must immediately send the notice required by Texas Rule of Appellate Procedure 6.5(c) and file a copy of that notice with the Clerk of this Court. See Tex. R. App. P. 6.5(c).

Evelyn V. Keyes

Justice

Panel consists of Justices Jennings, Keyes, and Higley.

Do not publish. See Tex. R. App. P. 47.2(b).

1. Trial court number 1080528; appellate court cause number 01-07-00990-CR.

2. Trial court number 1096706; appellate court cause number 01-07-00989-CR.