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

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NUMBER 13-09-00052-CR COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI EDINBURG DAVID MARTINEZ, Appellant, v. THE STATE OF TEXAS, Appellee. On appeal from the 319th District Court of Nueces County, Texas. MEMORANDUM OPINION Before Justices Rodriguez, Benavides, and Vela Memorandum Opinion by Justice Benavides David Martinez was indicted with one count of aggravated robbery, four counts of aggravated assault, and one count of endangering a child. See TEX . PENAL CODE ANN . § 29.03 (Vernon 2003); 22.02 (Vernon Supp. 2009); 22.041 (Vernon Supp. 2009). The State alleged an enhancement based on Martinez s prior felony conviction. See id. § 12.42(b), (c)(1) (Vernon Supp. 2009). Martinez pleaded guilty to all counts and true to the enhancement without a plea bargain. He was sentenced to life imprisonment in the Texas Department of Criminal Justice Institutional Division. Martinez s appellate counsel, concluding that "there are no arguable grounds to be advanced on appeal," filed an Anders brief in which he reviewed the merits, or lack thereof, of the appeal. Appellant filed a pro se response. We affirm. I. DISCUSSION A. 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 his review of the record yielded no grounds or error upon which an appeal can be predicated. Although counsel s brief does not advance any arguable grounds of error, it does present a professional evaluation of the record demonstrating why there are no arguable grounds to be advanced 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 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), appellant's counsel has carefully discussed why, under controlling authority, there are no errors in the trial court's judgment. Counsel has informed this Court that he has: (1) examined the record and found no arguable grounds to advance on appeal; (2) served 2 a copy of the brief and counsel s motion to withdraw on appellant; and (3) informed appellant of his right to review the record and to file a pro se response within thirty days.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. Martinez filed 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 have reviewed the entire record, counsel's brief, and the appellant s pro se response and 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. 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 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) (quoting W ilson v. State, 955 S.W .2d 693, 696-97 (Tex. App. W aco 1997, no pet.)). 3 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. 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). __________________________ GINA M. BENAVIDES, Justice Do not publish. See TEX . R. APP. P. 47.2(b). Delivered and filed the 8th day of July, 2010. 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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