GABRIEL MARTINEZ v. THE STATE OF TEXAS--Appeal from 36th District Court of San Patricio County

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NUMBER 13-09-00433-CR COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG GABRIEL MARTINEZ, Appellant, v. THE STATE OF TEXAS, Appellee. On appeal from the 36th District Court of San Patricio County, Texas. MEMORANDUM OPINION Before Justices Rodriguez, Benavides, and Vela Memorandum Opinion by Justice Rodriguez Appellant Gabriel Martinez appeals from his conviction for two counts of sexual assault of a child and two counts of indecency with a child. See TEX . PENAL CODE ANN . ยงยง 21.11, 22.011 (Vernon Supp. 2009). Martinez pleaded not guilty, and the case was 1 tried to a jury on May 26-27, 2009. The jury found Martinez guilty of all four counts. At the punishment phase of the trial, Martinez pleaded true to the State's enhancement allegations and was sentenced to fifty years' incarceration for each count and assessed a $2,000 fine for count one; the sentences were ordered to run concurrently. Concluding that Martinez's "appeal in this cause is frivolous and without merit," counsel filed an Anders 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), Martinez's court-appointed appellate counsel has filed a brief with this Court, stating that he has "diligently reviewed the entire record in this cause and the law applicable thereto," and in his professional opinion, "there are no grounds of error upon which an appeal can be predicated." After discussing the jury trial, the punishment assessed, and applicable law, counsel concludes that "no error by the trial court" or Martinez's trial counsel is "apparent on the record." 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. 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), Martinez's counsel has, thus, carefully discussed why, under controlling authority, there are no errors in the trial court's judgment. Counsel has informed this Court that he 2 has: (1) served a copy of the brief and his request to withdraw as counsel on Martinez; (2) forwarded Martinez a copy of the record; and (3) informed Martinez of his right to 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 Martinez 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. III. MOTION TO WITHDRAW In accordance with Anders, Martinez's attorney has asked this Court for permission to withdraw as counsel for Martinez. 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 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 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 April 30, 2010. Within five days of the date of this Court s opinion, counsel is ordered to send a copy of the opinion and judgment to Martinez and to advise Martinez 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). Delivered and filed the 17th day of June, 2010. 2 No substitute counsel will be appointed. Should Martinez 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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