ERICK JOHN LLORANCE v. THE STATE OF TEXAS--Appeal from 24th District Court of Victoria County

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NUMBER 13-09-00010-CR COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG ERICK JOHN LLORANCE, Appellant, v. THE STATE OF TEXAS, Appellee. On appeal from the 24th District Court of Victoria County, Texas. MEMORANDUM OPINION Before Justices Rodriguez, Garza, and Vela Memorandum Opinion by Justice Rodriguez Appellant, Erick John Llorance, appeals from his aggravated robbery conviction. Appellant was indicted and charged with three counts of engaging in organized criminal activity. A jury found appellant guilty of lesser-included offenses, including one count of robbery, a second-degree felony enhanced because appellant was found to be a habitual felony offender, and two counts of aggravated robbery, both first-degree felonies enhanced because appellant was found to be a habitual felony offender. See TEX . PENAL CODE ANN . ยงยง 29.02(a)(1), 29.03(a)(2) (Vernon 2003), 12.42(d) (Vernon Supp. 2008). The trial court imposed three life sentences to run concurrently. This appeal ensued. Concluding that, in his professional opinion, "this appeal is without merit and frivolous," appellant's counsel filed a brief in which he reviewed the merits, or lack thereof, of the appeal. We affirm. I. Compliance with Anders v. California Pursuant to Anders v. California, 386 U.S. 738, 744 (1967), appellant s court-appointed appellate counsel has filed a brief with this Court, stating that it is his professional opinion that no reversible error is reflected by the record." Counsel s brief discusses the portion of the record pertinent to the following arguable grounds of error: (1) the evidence was legally and factually insufficient to sustain convictions for robbery and aggravated robbery; (2) the trial court failed to consider mitigating evidence in determining appellant's sentence; (3) appellant's sentence is cruel and unusual in violation of the United States Constitution; and (4) appellant was not given effective assistance of counsel at trial. Including record references to the facts and setting out pertinent legal authorities, counsel presented a professional evaluation of the record explaining why he concluded that the evidence was both legally and factually sufficient to sustain appellant's convictions; why the trial court did not abuse its discretion in sentencing appellant; and why the record does not support or overcome the presumption that appellant was afforded effective assistance of counsel. See In re Schulman, 252 S.W.3d 403, 407 n.9 (Tex. Crim. App. 2008) (orig. proceeding) ( 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. 2 State, 112 S.W.3d 340, 343-44 (Tex. App. Corpus Christi 2003, no pet.)); Stafford v. State, 813 S.W.2d 503, 510 n.3 (Tex. Crim. App. 1991) (en banc). In compliance with High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel Op.] 1978), appellant's counsel has, thus, carefully discussed why, under controlling authority, there are no errors in the trial court's judgment. Counsel has certified to this Court that he has: (1) found no reversible error reflected by the record after diligently searching the record in this case and researching the applicable law; and (2) forwarded a copy of the brief and request to withdraw as counsel to appellant. Counsel has also informed appellant of his right to review the record and file a pro se response.1 See Anders, 386 U.S. at 744; Stafford, 813 S.W.2d at 510 n.3; see also In re Schulman, 252 S.W.3d at 409 n.23. More than an adequate period of time has passed, and appellant has not filed a pro se response. See In re Schulman, 252 S.W.3d at 409. II. Independent Review Upon receiving an Anders brief, this Court 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 have reviewed the entire record and counsel's brief, and we have found nothing that would arguably support an appeal. See Bledsoe v. State, 178 S.W.3d 824, 826-28 (Tex. Crim. App. 2005) ( 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. Accordingly, we affirm the judgment of the trial court. 1 The Texas Court of Crim inal Appeals has held that the pro se response need not com ply 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 m eritorious issues. In re Schulman, 252 S.W .3d 403, 409 n.23 (Tex. Crim . App. 2008) (orig. proceeding) (quoting W ilson v. State, 955 S.W .2d 693, 696-97 (Tex. App. W aco 1997, no pet.)). 3 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 (citing Jeffery v. State, 903 S.W.2d 776, 779-80 (Tex. App. Dallas 1995, no pet.) (noting that [i]f an attorney believes the appeal is frivolous, he must withdraw from representing the appellant. To withdraw from representation, the appointed attorney must file a motion to withdraw accompanied by a brief showing the appellate court that the appeal is frivolous ) (citations omitted)). We grant counsel s motion to withdraw that was carried with the case on June 11, 2009. Within five days of the date of this Court s opinion, counsel is ordered to send a copy of the opinion and judgment to appellant and to advise appellant of his right to file a petition for discretionary review.2 See TEX . R. APP. P. 48.4; see also In re Schulman, 252 S.W.3d at 412 n.35; Ex parte Owens, 206 S.W.3d 670, 673 (Tex. Crim. App. 2006). NELDA V. RODRIGUEZ Justice Do not publish. TEX . R. APP. P. 47.2(b). Memorandum Opinion delivered and filed this 13th day of August, 2009. 2 No substitute counsel will be appointed. Should appellant wish to seek further review of this case by the Texas Court of Crim inal Appeals, he m ust 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 m ust be filed within thirty days from the date of either this opinion or the last tim ely m otion for rehearing that was overruled by this Court. See T EX . R. A PP . P. 68.2. Any petition for discretionary review m ust be filed with this Court, after which it will be forwarded to the Texas Court of Crim inal Appeals. See T EX . R. A PP . P. 68.3; 68.7. Any petition for discretionary review should com ply with the requirem ents of Rule 68.4 of the Texas Rules of Appellate Procedure. See T EX . R. A PP . P. 68.4. 4

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