Lorenzo Cisneros v. State ( 2004 )

  NUMBER 13-03-599-CR

  COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG   

LORENZO CISNEROS,                                                               Appellant,

v.

THE STATE OF TEXAS,                                                             Appellee.

On appeal from the 319th District Court of Nueces County, Texas.

MEMORANDUM OPINION

Before Justices Yañez, Rodriguez, and Garza

Memorandum Opinion by Justice Yañez

          On September 23, 2002, appellant, Lorenzo Cisneros, pled guilty to possession of a controlled substance. The trial court assessed punishment at ten years’ confinement, suspended appellant’s confinement, and placed appellant on community supervision for seven years.

          On September 6, 2003, appellant was arrested for driving while intoxicated. Appellant also admitted to his community supervision officer that he consumed alcohol while on community supervision, and stayed out past his curfew on two separate occasions in violation of his community supervision. On September 9, 2003, the State filed a motion to revoke appellant’s community supervision because of the violations.

          Pursuant to a plea agreement, appellant pled true to violating his community supervision. On September 30, 2003, at the revocation hearing, appellant was informed by the trial judge that the State’s recommendation regarding punishment was not binding on the trial court. See Gutierrez v. State, 108 S.W.3d 304 (Tex. Crim. App. 2003). At the conclusion of the revocation hearing, the trial court revoked appellant’s community supervision and sentenced him to ten years’ imprisonment.   

          The record contains the trial court’s certification that this case is not a plea-bargain case and the defendant has the right of appeal. See Tex. R. App. P. 25.2(a)(2).

A. Anders Brief

          Appellant’s attorney has filed a brief with this Court asserting there is no basis for appeal. See Anders v. California, 386 U.S. 738 (1967). According to the brief, counsel has reviewed the clerk’s record and reporter’s record and has concluded that appellant’s appeal is frivolous and without merit. See id. The brief meets the requirements of Anders as it presents a professional evaluation showing why there are no arguable grounds for advancing an appeal. See 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. 1978), counsel has carefully discussed why, under controlling authority, there are no errors in the trial court’s judgment. In the brief, appellant’s counsel states that she has informed appellant of his right to review the appellate record and to file a pro se brief. No such brief has been filed.

          Upon receiving a “frivolous appeal” brief, the appellate courts must conduct “a full examination of all the proceedings to decide whether the case is wholly frivolous.” Penson v. Ohio, 488 U.S. 75, 80 (1988); see Garza v. State, 126 S.W.3d 312, 313 (Tex. App.–Corpus Christi 2004, no pet.). We have carefully reviewed the appellate record and counsel’s brief. We find nothing in the record that might arguably support this appeal. We agree with appellant’s counsel that the appeal is wholly frivolous and without merit.

          The trial court’s judgment is affirmed.

B. Motion to Withdraw

          Additionally, counsel has requested to withdraw from further representation of appellant on this appeal. An appellate court may grant counsel's motion to withdraw filed in connection with an Anders brief. Moore v. State, 466 S.W.2d 289, 291 n.1 (Tex. Crim. App. 1971); see Stafford, 813 S.W.2d at 511. We grant counsel's motion to withdraw and order her to notify appellant of the disposition of his appeal and of the availability of discretionary review. See Ex parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997) (per curiam).

                                                               LINDA REYNA YAÑEZ

                                                                           Justice

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

Memorandum opinion delivered and filed this the

19th day of August, 2004.