Jose Ernesto Flores v. State ( 2018 )

Opinion filed March 30, 2018
In The
Eleventh Court of Appeals
__________
No. 11-17-00180-CR
__________
JOSE ERNESTO FLORES, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 142nd District Court
Midland County, Texas
Trial Court Cause No. CR46405
MEMORANDUM OPINION
The jury convicted Appellant, Jose Ernesto Flores, of the offense of burglary
of a habitation. Appellant pleaded true to the enhancement allegations, and the trial
court assessed Appellant’s punishment at confinement for twenty-five years. We
dismiss the appeal.
Appellant’s court-appointed counsel has filed a motion to withdraw. The
motion is supported by a brief in which counsel professionally and conscientiously
examines the record and applicable law and concludes that the appeal is frivolous
and without merit. Counsel has provided Appellant with a copy of the brief, the
motion to withdraw, the reporter’s record, and the clerk’s record. Counsel also
advised Appellant of his right to review the record and file a response to counsel’s
brief. Appellant has not filed a response.1
Court-appointed counsel has complied with the requirements of Anders v.
California, 386 U.S. 738 (1967); Kelly v. State, 436 S.W.3d 313 (Tex. Crim. App.
2014); In re Schulman, 252 S.W.3d 403 (Tex. Crim. App. 2008); Stafford v. State,
813 S.W.2d 503 (Tex. Crim. App. 1991); High v. State, 573 S.W.2d 807 (Tex. Crim.
App. [Panel Op.] 1978); Currie v. State, 516 S.W.2d 684 (Tex. Crim. App. 1974);
Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969); and Eaden v. State, 161
S.W.3d 173 (Tex. App.—Eastland 2005, no pet.). In addressing an Anders brief and
pro se response, a court of appeals may only determine (1) that the appeal is wholly
frivolous and issue an opinion explaining that it has reviewed the record and finds
no reversible error or (2) that arguable grounds for appeal exist and remand the cause
to the trial court so that new counsel may be appointed to brief the issues. Schulman,
252 S.W.3d at 409; Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim. App.
2005). Following the procedures outlined in Anders and Schulman, we have
independently reviewed the record, and we agree that the appeal is without merit and
should be dismissed. See Schulman, 252 S.W.3d at 409.
We note that counsel has the responsibility to advise Appellant that he may
file a petition for discretionary review with the clerk of the Texas Court of Criminal
Appeals seeking review by that court. TEX. R. APP. P. 48.4 (“In criminal cases, the
attorney representing the defendant on appeal shall, within five days after the
1
This court granted Appellant thirty days in which to exercise his right to file a response to counsel’s
brief, as well as additional time in response to a pro se motion for extension of time to file a response.
2
opinion is handed down, send his client a copy of the opinion and judgment, along
with notification of the defendant’s right to file a pro se petition for discretionary
review under Rule 68.”). Likewise, this court advises Appellant that he may file a
petition for discretionary review pursuant to TEX. R. APP. P. 68.
The motion to withdraw is granted, and the appeal is dismissed.
PER CURIAM
March 30, 2018
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Willson, J.,
Bailey, J., and Wright, S.C.J.2
2
Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.
3