RANDY GUERRA v. THE STATE OF TEXAS--Appeal from 117th District Court of Nueces County
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NUMBERS 13-09-00417-CR 13-09-00418-CR COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG RANDY GUERRA, Appellant, v. THE STATE OF TEXAS, Appellee. On appeal from the 117th District Court of Nueces County, Texas. MEMORANDUM OPINION Before Chief Justice Valdez and Justices Yañez and Vela Memorandum Opinion by Chief Justice Valdez Appellant, Randy Guerra, was charged by indictment with one count of aggravated robbery, a first-degree felony, in both appellate cause numbers 13-09-417-CR and 13-09418-CR.1 See TEX . PENAL CODE ANN . § 29.03(a)(2) (Vernon 2003). Pursuant to a plea 1 The underlying offenses in both cause num bers pertain to robberies at two different convenience stores on or about the night of January 11, 2004. However, because appellant s counsel has filed Anders briefs in both appellate cause num bers 13-09-417-CR and 13-09-418-CR, and because the analysis is the agreement with the State, Guerra pleaded guilty to the underlying charge. The trial court found Guerra guilty of the underlying offenses in both appellate cause numbers, assessed a sentence of ten years confinement, suspended the sentence, placed Guerra on community supervision for ten years, and imposed a fine of $500 and court costs.2 On May 3, 2005, the State filed its first motion to revoke Guerra s community supervision, alleging that Guerra had violated several conditions of his community supervision by unlawfully carrying a weapon, possessing marihuana, and failing to pay court-ordered fines and fees. At a hearing on the State s first motion to revoke, Guerra pleaded true to the allegations contained in the State s motion to revoke; the trial court subsequently sanctioned Guerra, placed him on the special caseload for substance abuse probation program, and ordered him to participate in TAIP3 evaluations and attend substance abuse classes. Thereafter, the State filed three more motions to revoke, asserting that Guerra had violated several other conditions of his community supervision, including several instances of improper consumption of alcohol. With respect to the second and third motions to revoke, the trial court further sanctioned Guerra; however, the trial court revoked Guerra s community supervision after Guerra pleaded true to the allegations contained in the State s fourth motion to revoke that was filed on May 15, 2009.4 After revoking Guerra s community supervision, the trial court reduced the sam e, we issue one opinion addressing both appellate cause num bers. 2 The punishm ents im posed in both appellate cause num bers were ordered to run concurrently. 3 TAIP is identified on the Texas Departm ent of Crim inal Justice website as the Treatm ent Alternative to Incarceration Program (CJAD). See Tex. Dep t of Crim inal Justice: Definitions & Acronym s, http://www.tdcj.state.tx.us/definitions/definitions-acronym s.htm (last visited Feb. 2, 2010). 4 In its fourth m otion to revoke, the State alleged, am ong other things, that Guerra violated the term s and conditions of his com m unity supervision by engaging in fam ily violence assault. See T EX . P EN AL C O DE A N N . § 22.01(b)(2) (Vernon Supp. 2009); T EX . F AM . C OD E A N N . § 71.003 (Vernon 2008). 2 suspended ten-year sentences to eight years confinement in the Institutional Division of the Texas Department of Criminal Justice with no fine and, once again, ordered the sentences imposed in both appellate cause numbers to run concurrently. Guerra s appellate counsel, concluding that there are no meritorious issues to bring forward for review, filed Anders briefs in both appellate cause numbers, in which he reviewed the merits, or lack thereof, of the appeals. We affirm. I. ANDERS BRIEF Pursuant to Anders v. California, 386 U.S. 738, 744 (1967), Guerra s court-appointed appellate counsel has filed briefs with this Court, stating that his review of the record yielded no grounds or error upon which an appeal can be predicated in either appellate cause number. Although counsel s briefs do not advance any arguable grounds of error, they do present a professional evaluation of the record demonstrating why there are no arguable grounds to be advanced in either 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 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), Guerra's counsel has carefully discussed why, under controlling authority, there are no errors in the trial court's judgments. Counsel has informed this Court that he has: (1) examined the record and found no arguable grounds to advance in either appeal, (2) served copies of the briefs and counsel s motions to withdraw on Guerra, and (3) informed 3 Guerra of his right to review the record and to file a pro se response in both appellate cause numbers.5 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 Guerra has not filed a pro se response in either appellate cause number. See In re Schulman, 252 S.W.3d at 409. 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 have reviewed the entire record and counsel's briefs and have found nothing that would arguably support an appeal in either appellate cause number. 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 judgments of the trial court. III. MOTION TO WITHDRAW In accordance with Anders, Guerra s attorney has asked this Court for permission to withdraw as counsel in both appellate cause numbers. 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.) ( If an attorney believes the appeal is frivolous, 5 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) (quoting W ilson v. State, 955 S.W .2d 693, 696-97 (Tex. App. W aco 1997, no pet.)). 4 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 motions to withdraw. Within five days of the date of this Court s opinion, counsel is ordered to send a copy of the opinion and judgment in each appellate cause number to Guerra and advise him of his right to file petitions for discretionary review.6 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). _______________________ ROGELIO VALDEZ Chief Justice Do Not Publish. TEX . R. APP. P. 47.2(b) Delivered and filed the 25th day of February, 2010. 6 No substitute counsel will be appointed. Should Guerra wish to seek further review of these cases 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. 5
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