David Samuel Flores v. State ( 2020 )

NUMBER 13-19-00433-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
DAVID SAMUEL FLORES, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 23rd District Court
of Wharton County, Texas.
MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Longoria and Hinojosa
Memorandum Opinion by Justice Longoria
Appellant David Samuel Flores was convicted of aggravated assault of a family
member with a deadly weapon, a first-degree felony. See TEX. PENAL CODE ANN.
§ 22.02(b)(1). Appellant pleaded true to the enhancement paragraphs which alleged that
he had been convicted of three prior felonies. Appellant elected to have the trial court
assess punishment and he was sentenced to fifty-five years’ incarceration in the
Institutional Division of the Texas Department of Criminal Justice.
Appellant filed a notice of appeal. Appellant’s court-appointed counsel has filed an
Anders brief stating that there are no arguable grounds for appeal. See Anders v.
California, 386 U.S. 738, 744 (1967). We affirm.
I. ANDERS BRIEF
Pursuant to Anders v. California, appellant’s court-appointed appellate counsel
has filed a motion to withdraw and a brief stating that his review of the record yielded no
grounds of error upon which an appeal can be predicated. See id. Counsel’s brief meets
the requirements of Anders as it presents a professional evaluation demonstrating why
there are no arguable grounds to advance on appeal. See In re Schulman, 252 S.W.3d
403, 407 n.9 (Tex. Crim. App. 2008) (“In 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–Edinburg
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) and Kelly v. State, 436 S.W.3d 313, 318–19 (Tex. Crim. App. 2014),
appellant’s counsel carefully discussed why, under controlling authority, there is no
reversible error in the trial court’s judgment. Counsel has informed this Court, in writing,
that counsel has: (1) notified appellant that counsel has filed an Anders brief and a motion
to withdraw; (2) provided appellant with copies of both pleadings; (3) informed appellant
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of his rights to review the record, file a pro se response, 1 and seek discretionary review if
this Court concludes that the appeal is frivolous; and (4) provided appellant with a form
motion for pro se access to the appellate record that includes the Court’s mailing address,
instructions to file the motion within ten days, and only requires appellant’s signature and
the date. See Anders, 386 U.S. at 744; Kelly, 436 S.W.3d at 318–19. Adequate time has
passed, and appellant has not filed a pro se motion for access to the appellate record or
a pro se response.
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 may determine the appeal is wholly frivolous and issue an opinion after
reviewing the record and finding no reversible error. Bledsoe v. State, 178 S.W.3d 824,
826–27 (Tex. Crim. App. 2005). Alternatively, if we determine that arguable grounds for
appeal exist, we must remand for the appointment of new counsel to brief those issues.
Id. at 827.
We have conducted an independent review of the record, including appellate
counsel’s brief, and find no reversible error. See id. at 827–28 (“Due 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.
1 The Texas Court of Criminal Appeals has held that “the 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.)).
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We agree with counsel that the record presents no arguably meritorious grounds for
review, and an appeal would be frivolous. See Garner v. State, 300 S.W.3d 763, 766
(Tex. Crim. App. 2009); Bledsoe, 178 S.W.3d at 826–27.
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 (“[I]f an attorney believes the appeal is frivolous,
he must withdraw from representing the appellant.” (quoting Jeffery v. State, 903 S.W.2d
776, 779–80 (Tex. App.—Dallas 1995, no pet.))).
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 this opinion and this Court’s judgment to
appellant and to advise him of his right to file a petition for discretionary review. 2 See TEX.
R. APP. P. 48.4; In re Schulman, 252 S.W.3d at 412 n.35; Ex parte Owens, 206 S.W.3d
670, 673 (Tex. Crim. App. 2006).
IV. CONCLUSION
We affirm the trial court’s judgment.
NORA L. LONGORIA
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
30th day of April, 2020.
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 or timely motion
for en banc reconsideration that was overruled by this Court. See TEX. R. APP. P. 68.2. Any petition for
discretionary review must be filed with the clerk of the Court of Criminal Appeals. See id. R. 68.3. Any
petition for discretionary review should comply with the requirements of Texas Rule of Appellate Procedure
68.4. See id. R. 68.4.
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