Victor Joe Cortez v. State ( 2010 )

NO. 07-09-0291-CR
NO. 07-09-0292-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
SEPTEMBER 9, 2010
VICTOR JOE CORTEZ, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
FROM THE 47TH DISTRICT COURT OF POTTER COUNTY;
NOS. 58,786-A, 58,787-A; HONORABLE HAL MINER, JUDGE
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
Appellant, Victor Joe Cortez, was convicted by a jury of three counts of
aggravated sexual assault of a child and one count of indecency with a child by sexual
contact enhanced by a prior conviction for the felony offense of indecency with a child. 1
He was sentenced to confinement for three consecutive life sentences and one
1
See Indictments for Causes Nos. 58,786-A and 58,787-A. See also Tex. Penal Code Ann. §§
22.021(a)(2)(B), 21.11(a)(1), 12.42(c)(2) (Vernon Supp. 2009), respectively.
concurrent life sentence. In presenting his appeal, counsel has filed an Anders 2 brief in
support of a motion to withdraw. We grant counsel's motion and affirm.
In support of her motion to withdraw, counsel certifies she has conducted a
conscientious examination of the record and, in her opinion, the record reflects no
potentially plausible basis to support an appeal. Anders v. California, 386 U.S. 738,
744-45, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967); In re Schulman, 252 S.W.3d 403, 406
(Tex.Crim.App. 2008). Counsel candidly discusses why, under the controlling
authorities, the appeal is frivolous. See High v. State, 573 S.W.2d 807, 813
(Tex.Crim.App. 1978). Counsel has also demonstrated that she has complied with the
requirements of Anders and In re Schulman by (1) providing a copy of the brief to
Appellant, (2) notifying him of his right to file a pro se response if he desired to do so,
and (3) informing him of his right to file a pro se petition for discretionary review. In re
Schulman, 252 S.W.3d at 408. 3 No response was filed by the State. Appellant filed a
pro se response to counsel's brief. 4
2
Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967).
3
Notwithstanding that Appellant was informed of his right to file a pro se petition for discretionary
review upon execution of the Trial Court's Certification of Defendant's Right of Appeal, counsel
must comply with Rule 48.4 of the Texas Rules of Appellate Procedure which provides that
counsel shall within five days after this opinion is handed down, send Appellant a copy of the
opinion and judgment together with notification of his right to file a pro se petition for
discretionary review. Tex. R. App. P. 48.4. See In re Schulman, 252 S.W.2d at 408 n.22 & 411
n.35.
4
By his pro se response, Appellant raised two issues. He questions (1) whether the trial court
should have conducted an investigation into an alleged conflict of interest between the
prosecutor and defense counsel and (2) whether defense counsel should have filed certain
motions. Appellant's "third issue" is in actuality a single-sentence conclusion, i.e., that, but for
counsel's unprofessional conduct and deficient performance, the outcome of his trial would have
been different.
2
By his Anders brief, counsel raises three arguable issues: (1) whether the trial
court erred by ordering three of Appellant's life sentences to run consecutively, (2)
whether Appellant's punishment was properly enhanced to automatic life, despite the
State's use of the same prior conviction to enhance two separate offenses, and (3)
whether the evidence was both legally and factually sufficient to support Appellant's
conviction. Counsel then candidly reviews each arguable issue and explains why no
reversible error is presented.
Where we have an Anders brief by counsel and a pro se response, we have two
choices. We may determine that the appeal is wholly frivolous and issue an opinion
explaining that we have reviewed the record and find no reversible error; Bledsoe v.
State, 178 S.W.3d 824, 826-27 (Tex.Crim.App. 2005) (citing Anders, 386 U.S. at 744),
or we may determine that arguable grounds for appeal exist and remand the cause to
the trial court so that new counsel may be appointed to brief issues. Id. (citing Stafford
v. State, 813 S.W.2d 503, 510 (Tex.Crim.App. 1991)). However, "[o]nly after the issues
have been briefed by new counsel may a court of appeals address the merits of the
issues." 178 S.W.3d at 827.
We have reviewed counsel's arguments and we have independently examined
the entire record to determine whether there are any non-frivolous issues which might
support the appeal. See Penson v. Ohio, 488 U.S. 75, 80, 109 S. Ct. 346, 102 S. Ct.
346, 102 L. Ed. 2d 300 (1988); In re Schulman, 252 S.W.3d at 409; Stafford v. State, 813
S.W.2d 503, 511 (Tex.Crim.App. 1991). We have found no such issues. See Gainous
v. State, 436 S.W.2d 137, 138 (Tex.Crim.App. 1969). After reviewing the record,
3
counsel's brief and Appellant's pro se response, we find nothing in the record that might
arguably support the appeal. See Bledsoe, 178 S.W.3d at 826-27 (holding that it is
constitutional error for an appellate court to address nonmeritorious arguments raised in
a pro se response to an Anders brief).
Accordingly, counsel's motion to withdraw is granted and the trial court's
judgments are affirmed.
Patrick A. Pirtle
Justice
Do not publish.
4