JUAN MANUEL RODRIGUEZ v. THE STATE OF TEXAS--Appeal from 299th District Court of Travis County

NUMBER 13-06-309-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG

JUAN MANUEL RODRIGUEZ, Appellant,

 
v.

THE STATE OF TEXAS, Appellee.

On appeal from the 299th District Court

of Travis County, Texas

 

MEMORANDUM OPINION

 
Before Justices Rodriguez, Garza, and Vela
Memorandum Opinion by Justice Rodriguez

Appellant, Juan Manuel Rodriguez, appeals from his conviction of aggravated sexual assault of a child. After entering a plea of not guilty, the jury found appellant guilty and sentenced him to 75 years in prison. Concluding that "the record contains no reversible error and no jurisdictional defects," 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

Appellant's court-appointed counsel filed an Anders brief in which he has reluctantly concluded that there are no arguable grounds for reversal. Anders v. California, 386 U.S. 738, 744 (1967). Appellant's brief meets the requirements of Anders. Id. at 744-45; see High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. [Panel Op.] 1978). In compliance with Anders, counsel presented a professional evaluation of the record and referred this Court to what, in his opinion, are all issues which might arguably support an appeal including sufficiency of the evidence, jury composition, examination of venirepersons, denial of defense challenges to venirepersons, the State's opening statement, examination of Officer Jeffrey Page, the State's final argument, and limitations. See Anders, 386 U.S. at 744; Currie v. State, 516 S.W.2d 684, 684 (Tex. Crim. App. 1974); see also High, 573 S.W.2d at 812. The State filed a brief agreeing that the record does not disclose any meritorious or arguable error upon which this Court may grant relief.

Counsel has informed this Court that he has reviewed the appellate record and concludes there are no arguable grounds for reversal and that he forwarded to appellant a copy of the brief and his motion to withdraw with a letter informing appellant of his right to review the record and to file a pro se brief. See Anders, 386 U.S. at 744-45; see also Stafford v. State, 813 S.W.2d 503, 509 (Tex. Crim. App. 1991) (en banc); High, 573 S.W.2d at 813.

II. Pro Se Brief

Appellant filed a pro se brief urging four issues. He complains of the composition of the jury, a comment made by the State during its final argument, and the examination of Officer Page. Appellant also asserts ineffective assistance of counsel, contending that counsel did not allow appellant to testify and allegedly failed to call witnesses during the guilt/innocence phase of the trial causing the jury only to hear the "bad" side of appellant. He also complains that counsel was ineffective because he asked questions of appellant's daughter that were irrelevant and, during closing argument, offered an explanation for the crime that was without proof. (1)

III. Independent Review

The United States Supreme Court advised appellate courts that upon receiving a "frivolous appeal" brief, they must conduct "a full examination of all the proceedings to decide whether the case is wholly frivolous." Penson v. Ohio, 488 U.S. 75, 80 (1988); see Ybarra v. State, 93 S.W.3d 922, 926 (Tex. App.-Corpus Christi 2002, no pet.). Accordingly, we have carefully reviewed the record and have found nothing that would arguably support an appeal. (2) See Bledsoe v. State, 178 S.W.3d 824, 826 (Tex. Crim. App. 2005); Stafford, 813 S.W.2d at 509. We agree with counsel that the appeal is wholly frivolous and without merit. See Bledsoe, 178 S.W.3d at 827-28 ("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 requirements of Texas Rule of Appellate Procedure 47.1.").

IV. Conclusion

The judgment of the trial court is affirmed. Additionally, appellant's counsel's motion to withdraw as appellate counsel was carried with the case on October 18, 2007. See Anders, 386 U.S. at 744. Having affirmed the judgment, we now grant counsel's motion to withdraw. We order counsel to notify appellant of the disposition of this appeal and of the availability of discretionary review. See In re K.D., S.D., and J.R., 127 S.W.3d 66, 68 n.3 (Tex. App. -Houston [1st Dist.] 2003, no pet.) (citing Ex parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997) (en banc) (per curiam)).

NELDA V. RODRIGUEZ

Justice

 

Do not publish.

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

 

Memorandum Opinion delivered and

filed this 20th day of December, 2007.

1. In his pro se brief, appellant provided only unsupported contentions. Thus, appellant's briefing was inadequate. See Tex. R. App. P. 38.1(h) (setting out that we will only consider contentions that are supported by clear and concise arguments with appropriate citations to authorities and to the record).

2. Although appellant's attempt at a direct appeal has been unsuccessful he is not without a potential remedy. Challenges requiring development of a record to substantiate a claim such as ineffective assistance of counsel may be raised in an application for writ of habeas corpus. See Tex. Code Crim. Proc. Ann. art. 11.07 (Vernon 2005); Cooper v. State, 45 S.W.3d 77, 82 (Tex. Crim. App. 2001); Ex parte Torres, 943 S.W.2d 469, 476 (Tex. Crim. App. 1997). An application for writ of habeas corpus relief would "provide an opportunity to conduct a dedicated hearing to consider the facts, circumstances, and rationale behind counsel's actions at . . . trial." Thompson v. State, 9 S.W.3d 808, 814-15 (Tex. Crim. App. 1999).