ROSENDO TAMAYO JR. v. THE STATE OF TEXAS--Appeal from County Court at Law No 3 of Cameron County
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NUMBER 13-10-00310-CR COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG ROSENDO TAMAYO JR., Appellant, v. THE STATE OF TEXAS, Appellee. On appeal from the County Court at Law No. 3 of Cameron County, Texas. MEMORANDUM OPINION Before Justices Benavides, Vela and Perkes Memorandum Opinion by Justice Benavides Rosendo Tamayo Jr., appellant, was found guilty of driving while intoxicated and was sentenced to 180 days in the county jail which was probated for fifteen months. See TEX. PENAL CODE ANN. ' 49.04 (West 2003). Tamayo 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. We affirm. I. DISCUSSION 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) (AIn 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. has: Counsel has informed this Court that he (1) examined the record and found no arguable grounds to advance on appeal; (2) served 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. 1 The Texas Court of Criminal Appeals has held that Athe pro se response need not comply 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 meritorious issues.@ In re Schulman, 252 S.W.3d 403, 409 n.23 (Tex. Crim. App. 2008) (quoting Wilson v. State, 955 S.W.2d 693, 696-97 (Tex. App. Waco 1997, no pet.)). 2 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, counsels s brief, 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) (ADue 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. More than an adequate period of time has passed, and Tamayo has not filed a pro se response. See In re Schulman, 252 S.W.3d at 409. 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 A[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. 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 3 appellant of his right to file a petition for discretionary review.2 See TEX. R. APP. P. 48.4. ________________________ GINA M. BENAVIDES, Justice Do not publish. TEX. R. APP. P. 47.2 (b). Delivered and filed the 4th day of August, 2011. 2 No substitute counsel will be appointed. Should appellant wish to seek further review of this case by the Texas Court of Criminal Appeals, he must 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 must be filed within thirty days from the date of either this opinion or the last timely motion for rehearing that was overruled by this Court. See TEX. R. APP. P. 68.2. Any petition for discretionary review must be filed with this Court, after which it will be forwarded to the Texas Court of Criminal Appeals. See TEX. R. APP. P. 68.3, 68.7. Any petition for discretionary review should comply with the requirements of Rule 68.4 of the Texas Rules of Appellate Procedure. See TEX. R. APP. P. 68.4. 4
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