Jose Flores v. State

NUMBER 13-10-00528-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI – EDINBURG

JOSE FLORES, Appellant, v.

THE STATE OF TEXAS, Appellee.

On appeal from the 319th District Court of Nueces County, Texas.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Garza and Vela

Memorandum Opinion by Justice Garza On July 13, 2009, pursuant to a plea bargain, appellant, Jose Flores, was placed on deferred adjudication community supervision for six years after he pleaded guilty to aggravated assault, a second-degree felony. See TEX. PENAL CODE ANN. § 22.02 (West Supp. 2010); TEX. CODE CRIM. PROC. ANN. art. 42.12, § 5 (West Supp. 2010). On August 12, 2010, the State filed a motion to revoke, alleging that appellant had violated various conditions of his deferred adjudication community supervision. At a hearing on August 27, 2010, appellant pleaded “true” to two of the violations alleged by the State and “not true” to several of the State’s allegations. Following the hearing, the trial court found three of the State’s allegations “true,” revoked appellant’s deferred adjudication community supervision, adjudicated him guilty, and sentenced him to ten years’ imprisonment. See TEX. PENAL CODE ANN. § 12.33 (West Supp. 2010). The trial court certified appellant’s right to appeal, and this appeal followed. We affirm.

I. ANDERS BRIEF

Appellant’s appellate counsel has filed a motion to withdraw and a brief in support thereof in which he states that he has diligently reviewed the entire record and has concluded that there is no reversible error. See Anders v. California, 386 U.S. 738 (1967); High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel Op.] 1978). Counsel has informed this Court that he has (1) examined the record and has found no arguable grounds to advance on appeal, (2) served copies of the brief and motion to withdraw on appellant, and (3) informed appellant of his right to review the record and to file a pro se response. See Anders, 386 U.S. at 744; Stafford v. State, 813 S.W.2d 503, 510 n.3 (Tex. Crim. App. 1991). More than an adequate time has passed, and no pro se response has been filed. See In re Schulman, 252 S.W.3d 403, 409 n.23 (Tex. Crim. App. 2008).

II. INDEPENDENT REVIEW

Upon receiving an Anders brief, we must conduct a full examination of all the proceedings to determine whether the appeal is wholly frivolous. Penson v. Ohio, 488 U.S. 75, 80 (1988). We have reviewed the entire record and counsel’s brief, and find that the appeal is wholly frivolous and without merit. See Bledsoe v. State, 178 S.W.3d 824, 827-28 (Tex. Crim. App. 2005) (“Due to the nature of Anders briefs, by indicating in the opinion it considered the issues raised in the brief 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.”); 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 counsel has asked this Court for permission to withdraw as counsel. 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, 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 the motion to withdraw.

We order that counsel must, within five days of the date of this opinion, send a copy of the opinion and judgment to appellant and advise him of his right to file a petition for discretionary review.1 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).

DORI CONTRERAS GARZA

Justice

Do not publish.

TEX. R. APP. P. 47.2(b) Delivered and filed the 16th day of February, 2012.