ELOY ESPINOSA v. THE STATE OF TEXAS--Appeal from 319th District Court of Nueces County

NUMBER 13-06-123-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG

ELOY ESPINOSA, Appellant,

 
v.

THE STATE OF TEXAS, Appellee.

On appeal from the 319th District Court
of Nueces County, Texas.
MEMORANDUM OPINION (1)
Before Chief Justice Valdez and Justices Ya ez and Castillo
Memorandum Opinion by Justice Castillo

Appellant Eloy Espinosa was indicted, (2) pleaded guilty, placed on community supervision, and ultimately sentenced to a thirty-year concurrent term in the Texas Department of Criminal Justice-Institutional Division. Espinosa appealed. The trial court has certified that this is not a plea bargain case and Espinosa has the right to appeal. See Tex. R. App. P. 25.2(a)(2). Espinosa's court-appointed counsel filed an Anders brief. See Anders v. California, 386 U.S. 738 (1967). We affirm.

I. Background

In a written statement to police, Espinosa confessed guilt. He pleaded guilty to the two counts alleged in the indictment, and the trial court deferred adjudication of guilt. On the State's final motion to adjudicate guilt and revoke community supervision, (3) he pleaded not true to the State's allegations of violations of the terms and conditions of community supervision. The trial court convened an evidentiary hearing in which Espinosa testified in his own behalf. The trial court found three allegations true, adjudicated guilt, revoked community supervision, and imposed punishment.

II. Anders Brief

A. Court Appointed Counsel's Opinion

Espinosa's court-appointed counsel has filed a brief in which she asserts she has thoroughly and diligently reviewed the entire appellate record and the applicable law in compliance with Anders. See id. Espinosa's counsel provides discussion of the regularity and adequacy of the following: (1) the indictment; (2) the terms and conditions of court-ordered community supervision; (3) the allegations in the State's motion to revoke; (4) the evidentiary hearing; (5) the sufficiency of the evidence to adjudicate guilt; (6) the trial court's decision to adjudicate guilt; (7) sentencing proceedings; (8) the validity of the punishment; (9) the legality of the sentence; (10) the propriety of the judgment; (11) Espinosa's competency to stand trial; (4) and (12) effectiveness of trial counsel. Counsel asserts that, in her professional opinion, the appeal of the judgment of conviction and sentence in this cause is without merit and is frivolous because the record reflects no basis to urge reversal, reform the judgment, or seek acquittal. She further asserts that she finds no arguable issues that would warrant a new trial. Counsel certifies that she has provided a copy of the Anders brief to Espinosa, an explanation as to (a) procuring the appellate record, (b) his right to review the record, and ( c) his right to file a pro se brief. To date, Espinosa has not filed a pro se brief. Counsel has filed a motion to withdraw.

B. The Law

Anders addresses the extent of the duty of a court-appointed appellate counsel to prosecute a first appeal from a criminal conviction, after that attorney has conscientiously determined that there is no merit to the indigent's appeal. Anders, 386 U.S. at 739. The requirements of Anders are met in the event appointed counsel thoroughly studies the record, consults with the defendant and trial counsel and conscientiously concludes, and so advises the appellate court, that there are no meritorious grounds of appeal; and provided that the appellate court is satisfied from its own review of the record, in light of any points personally raised by the defendant, that appointed counsel's conclusion is correct. Id. at 741. If counsel finds the case to be wholly frivolous, after a conscientious examination of it, she should so advise the appellate court and request permission to withdraw. Id. at 744. That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal. Id. A copy of counsel's brief should be furnished to the indigent and time allowed to him to raise any points he chooses; the court-not counsel-then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous. Id. If it so finds, it may grant counsel's request to withdraw and dismiss the appeal or proceed to a decision on the merits. Id.

On the other hand, if the appellate court finds any of the legal points arguable on their merits (and therefore not frivolous) it must, prior to decision, afford the indigent the assistance of counsel to argue the appeal. Id. If the appellate court is satisfied that counsel has diligently investigated the possible grounds of appeal and agrees with counsel's evaluation of the case, then leave to withdraw may be allowed and leave to appeal may be denied. Id. at 741-42. This procedure would not force appointed counsel to brief the case against her client but would merely afford the latter the advocacy which a nonindigent defendant is able to obtain. See id. at 745. It would also induce the appellate court to pursue all the more vigorously its own review because of the ready references not only to the record, but also to the legal authorities as furnished it by counsel. Id.

Accordingly, we must, "after a full examination of all the proceedings, . . . decide whether the case is wholly frivolous." Id. at 744; see Penson v. Ohio, 488 U.S. 75, 80 (1988); accord Stafford v. State, 813 S.W.2d 503, 509-11 (Tex. Crim. App. 1991). An appeal is "wholly frivolous" or "without merit" when it "lacks any basis in law or fact." McCoy v. Court of Appeals, 486 U.S. 429, 439 n.10 (1988). Arguments are frivolous when they "cannot conceivably persuade the court." Id. at 436. An appeal is not wholly frivolous when it is based on "arguable grounds." Stafford, 813 S.W.2d at 511. If we determine, from our independent review of the entire record, that the appeal is wholly frivolous, we may affirm the trial court's judgment by issuing an opinion in which we explain that we have reviewed the record and have found no reversible error. Bledsoe v. State, 178 S.W.3d 824, 826-28 (Tex. Crim. App. 2005). The holding that there are no arguable grounds for appeal is subject to challenge by an appellant by a petition for discretionary review filed in the Court of Criminal Appeals. Id. at 827 & n.6.

C. Application

Guided by court-appointed counsel's advocacy in the appellate brief, see Anders, 386 U.S. at 745, our independent review of the appellate record, see Penson, 488 U.S. at 80, and law applicable to the charged offense and sentence imposed, we conclude that no arguable grounds for appeal exist and find no reversible error. Bledsoe, 178 S.W.3d at 828. We further conclude that the appeal is wholly frivolous. See id.; McCoy, 486 U.S. at 439 n. 10.

III. Disposition

We affirm the trial court judgment of conviction and sentence. An appellate court may grant counsel's motion to withdraw filed in connection with an Anders brief. Moore v. State, 466 S.W.2d 289, 291 n.1 (Tex. Crim. App. 1971); see Stafford, 813 S.W.2d at 511(noting that an Anders brief should be filed with request for withdrawal from case). Counsel in this case has requested to withdraw from further representation of Espinosa on appeal. We hereby order counsel to advise Espinosa of the disposition of this appeal and the availability of discretionary review. See Bledsoe, 178 S.W.3d at 827 & n.6; Ex parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997) (en banc) (per curiam). We grant counsel's motion to withdraw as Espinosa's court-appointed counsel on appeal.

 

ERRLINDA CASTILLO

Justice

 

Do not publish.

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

 

Memorandum Opinion delivered and filed

this 24th day of August, 2006.

1. See Tex. R. App. P. 47.1, 47.2, 47.4.

2. The indictment alleged two counts of aggravated sexual assault of a child. See Tex. Pen. Code Ann. 22.021(a)(1)(B)(i) (Vernon Supp. 2006).

3. The record shows that Espinosa was on community supervision for approximately eight years before adjudication of guilt, revocation, and punishment. See Tex. Code Crim. Proc. Ann. art. 42.12(3)(a) (Vernon Supp. 2006).

4. After evaluation of the record, including the evidentiary hearing, appellate counsel asserts that Espinosa's testimony was coherent and articulate, demonstrating that he understood the questions, and he responded logically. The record supports the assessment.