Herman Alfredo Lopez v. State ( 2020 )

Opinion issued April 9, 2020
In The
Court of Appeals
For The
First District of Texas
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NO. 01-18-00358-CR
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HERMAN ALFREDO LOPEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 212th District Court
Galveston County, Texas
Trial Court Case No. 16-CR-2498
MEMORANDUM OPINION
Appellant, Herman Alfredo Lopez, pleaded not guilty to the felony offense
of possession with intent to deliver more than 400 grams of a controlled substance.
TEX. HEALTH & SAFETY CODE § 481.113(a), (e). Appellant was convicted and
sentenced by a jury to 20 years’ confinement in the Texas Department of Criminal
Justice. The jury also assessed a fine of $8,000. Appellant timely filed a notice of
appeal.
Appellant’s appointed counsel on appeal has filed a motion to withdraw,
along with a brief stating that the record presents no reversible error and the appeal
is without merit and is frivolous. See Anders v. California, 386 U.S. 738 (1967).
Counsel’s brief meets the Anders requirements by presenting a professional
evaluation of the record and supplying us with references to the record and legal
authority. See id.; see also High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App.
1978). Counsel indicates that he has thoroughly reviewed the record and is unable
to advance any grounds of error that warrant reversal. See Anders, 386 U.S. at 744;
Mitchell v. State, 193 S.W.3d 153, 155 (Tex. App.—Houston [1st Dist.] 2006, no
pet.). Appellant filed a motion to access the appellate record but did not file a pro
se response.1
1
Counsel’s motion to withdraw informed this Court about his unsuccessful attempts
to contact Appellant:
Defendant is no longer in TDCJ-ID custody since December 19,
2019. Movant was advised by TDCJ-ID that Defendant was
removed to ICE custody. Movant is unable to locate Defendant in
the ICE system. Movant has had no return response from
Defendant’s contact numbers.
We note that the Clerk of this Court sent notice that an Anders’s brief had been
filed and that, if Appellant wished to file a response, then it was due on February
5, 2020, to Appellant’s last known address. The notice was returned with the
notation “return to sender . . . unable to forward.”
2
We have independently reviewed the entire record in this appeal, and we
conclude that no reversible error exists in the record, there are no arguable grounds
for review, and the appeal is frivolous. See Anders, 386 U.S. at 744 (emphasizing
that reviewing court—and not counsel—determines, after full examination of
proceedings, whether appeal is wholly frivolous); Garner v. State, 300 S.W.3d
763, 767 (Tex. Crim. App. 2009) (reviewing court must determine whether
arguable grounds for review exist); Bledsoe v. State, 178 S.W.3d 824, 826–27
(Tex. Crim. App. 2005) (same); Mitchell, 193 S.W.3d at 155 (reviewing court
determines whether arguable grounds exist by reviewing entire record). We note
that an appellant may challenge a holding that there are no arguable grounds for
appeal by filing a petition for discretionary review in the Texas Court of Criminal
Appeals. See Bledsoe, 178 S.W.3d at 827 & n.6.
We affirm the judgment of the trial court and grant counsel’s motion to
withdraw.2 Attorney Zachary Maloney must immediately send Appellant the
required notice and file a copy of the notice with the Clerk of this Court. See TEX.
R. APP. P. 6.5(c). We dismiss any pending motions as moot.
2
Appointed counsel still has a duty to inform Appellant of the result of this appeal
and that he may, on his own, pursue discretionary review in the Texas Court of
Criminal Appeals. See Ex Parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App.
1997) (en banc).
3
PER CURIAM
Panel consists of Justices Lloyd, Landau, and Countiss.
Do not publish. TEX. R. APP. P. 47.2(b).
4