Christopher Menchaca v. State ( 2011 )

                                       NUMBER 13-10-00389-CR

                                        COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI - EDINBURG

CHRISTOPHER MARTIN MENCHACA,                              Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 197th District Court

of Cameron County, Texas.

MEMORANDUM OPINION

        Before Chief Justice Valdez and Justices Rodriguez and Benavides

                      Memorandum Opinion by Justice Benavides

Appellant, Christopher Martin Menchaca, was indicted of the charge of unlawful possession of controlled substance.  See Tex. Health & Safety Code Ann. ' 481.116(a) (West 2003).  He pled guilty and was sentenced to two years= imprisonment in the Texas Department of Criminal JusticeCInstitutional Division (ATDCJ-ID@).

Menchaca=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.  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 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.  More than an adequate period of time has passed, and Menchaca has not filed a pro se response.  See In re Schulman, 252 S.W.3d at 409.

                                                         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 and counsel's brief, 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 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

30th day of June, 2011.

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^[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.)).

^[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.