IVAN GUERRA BADILLO v. THE STATE OF TEXAS--Appeal from 107th District Court of Cameron County

NUMBER 13-05-284-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG

IVAN GUERRA BADILLO, Appellant,

 

v.

 

THE STATE OF TEXAS, Appellee.

On appeal from the 107th District Court of Cameron County, Texas.

MEMORANDUM OPINION

 
Before Chief Justice Valdez and Justices Ya ez and Castillo
Memorandum Opinion by Chief Justice Valdez

On April16, 2004, appellant, Ivan Guerra Badillo, pleaded guilty to possession of a controlled substance and aggravated assault on a public servant. See Tex. Health & Safety Code Ann. 481.115 (Vernon 2003); Tex. Pen. Code Ann. 22.02(b)(2)(B) (Vernon Supp. 2005). Under a plea bargain agreement, the trial court sentenced him to seven years' imprisonment. On July 14, 2004, appellant filed a motion for shock probation under article 42.12, section 6, of the code of criminal procedure. See Tex. Crim. Proc. Code Ann. art. 42.12, 6 (Vernon Supp. 2005). The trial court denied the motion, and also denied a second motion for shock probation filed on August 25, 2004. On October 15, 2004, 182 days after sentencing, a different trial judge heard and granted appellant's third motion for shock probation.

The State moved to set aside the order granting shock probation as void on the grounds that it was (1) not entered within 180 days after execution of the sentence actually began, and (2) not granted by the judge that imposed the original sentence. See id. By order, the trial court granted the State's motion, set aside the order granting shock probation as void, and reinstated the original judgment.

I. ANDERS BRIEF

Appellant's court-appointed attorney has filed an Anders brief, asserting there is no basis for this appeal. See Anders v. California, 386 U.S. 738, 744 (1967). In the brief, counsel states that he has reviewed the clerk's record and reporter's record and has concluded that this appeal is frivolous and without merit. See id. The brief meets the requirements of Anders as it presents a professional evaluation showing why there are no arguable grounds for advancing an appeal. See 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), counsel has carefully discussed why, under the controlling authorities, there are no errors in the trial court's judgment. In the brief, appellant's counsel certifies that he has informed appellant of his right to review the appellate record and to file a pro se brief. See Stafford, 813 S.W.2d at 510. No such brief has been filed.

II. INDEPENDENT REVIEW OF THE RECORD

Upon receiving a "frivolous appeal" brief, the appellate courts must conduct a "full examination of all of the proceedings to decide whether the case is wholly frivolous." Penson v. Ohio, 488 U.S. 75, 80 (1988); see Garza v. State, 126 S.W.3d 312, 313 (Tex. App.-Corpus Christi 2004, no pet.). We have carefully reviewed the appellate record and counsel's brief. We find nothing in the record that might arguably support this appeal. See Bledsoe v. State, 178 S.W.3d 824, 826-28 (Tex. Crim. App. 2005). Accordingly, we affirm the trial court's judgment.

III. MOTION TO WITHDRAW

The Court of Criminal Appeals, in Stafford v. State, stated that an Anders brief should be filed along with a request to withdraw from the case in the appeals court. See Stafford, 813 S.W.2d at 511. We note that counsel has not filed a motion to withdraw in this case. "By not filling a motion to withdraw, appellate counsel exhibited a basic, and common misunderstanding about Anders cases." See Jeffery v. State, 903 S.W.2d 776, 778 (Tex. App.-Dallas 1995, no pet.). While we prefer appointed counsel filing a frivolous appeal to strictly adhere to the procedures required by Anders, counsel's failure to file a motion to withdraw does not prohibit us from deciding the appeal. See Smith v. Robbins, 528 U.S. 259, 265 (2000). If counsel wishes to file a motion to withdraw, he must file the motion no later than fifteen days from the date of this opinion.

We order counsel to advise appellant promptly of the disposition of this case and the availability of discretionary review. See Ex parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997) (per curiam).

_______________________

ROGELIO VALDEZ

Chief Justice

 

Do not publish.

Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and filed

this the 3rd day of August, 2006.