Court of Civil Appeals of Texas, 2014

Rogelio Andrade v. State

Court of Civil Appeals of Texas · Decided July 3, 2014

Opinion

NUMBERS 13-14-00089-CR COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG ROGELIO ANDRADE, Appellant, v. THE STATE OF TEXAS, Appellee.

On appeal from the 391st District Court of Tom Green County, Texas.

MEMORANDUM OPINION Before Chief Justice Valdez and Justices Perkes and Longoria Memorandum Opinion by Justice Perkes Appellant Rogelio Andrade appeals his conviction of aggravated sexual assault of a child younger than fourteen, a first-degree felony. See TEX. PENAL CODE ANN. § 22.021 (West, Westlaw through 2013 3d C.S.). Appellant judicially confessed to the offense and was placed on deferred-adjudication community supervision for a period of ten years.

The State subsequently moved to revoke appellant’s community supervision, alleging appellant violated numerous terms of his community supervision conditions. Appellant pleaded not true to the alleged violations but the trial court found numerous allegations to be true, 1 adjudicated appellant guilty, and assessed punishment at sixty years of confinement in the Texas Department of Criminal Justice, Institutional Division.

Appellant timely perfected this appeal, and, as discussed below, his court-appointed counsel filed an Anders brief. We affirm.2 I. ANDERS BRIEF Pursuant to Anders v. California, 386 U.S. 738, 744 (1967), appellant’s court- appointed appellate counsel filed a brief and a motion to withdraw with this Court, stating that his review of the record yielded no grounds of error upon which an appeal can be predicated. Counsel’s brief meets the requirements of Anders as it presents a professional evaluation demonstrating why there are no arguable grounds to advance 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

1 In the Judgment Adjudicating guilt, the trial court noted that it found the following violations to be true: (1) appellant failed to make monthly probation payments for several months; (2) appellant failed to complete and submit a statement of inability to pay to the supervision officer; (3) appellant failed to register with the local law enforcement authority in the municipality where he resided or intended to reside for a period of more than seven days; (4) appellant failed to avoid injurious or vicious habits; to-wit, by using methamphetamine and alcohol on several occasions; (5) appellant failed to pay for urinalysis tests for several months; (6) appellant failed to attend alcoholics anonymous/narcotics anonymous meetings for several months; (7) appellant failed to report to the supervisor of the sex offenders for several months; (8) appellant failed to attend and complete the sex offender therapy program; (9) appellant failed to make monthly payments to the Concho County community supervision and corrections department for several months; and (10) appellant used or possessed a computer with access to an on-line computer service or email service. 2 This case is before this Court on transfer from the Third Court of Appeals in Austin pursuant to an order issued by the Supreme Court of Texas. See TEX. GOV'T CODE ANN. § 73.001 (West, Westlaw through 2013 3d C.S.). (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 reversible 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 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.3 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 appellant 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, 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 and counsel’s brief and have found nothing that would arguably support an appeal. 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 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

3 The Texas Court of Criminal Appeals has held that “the 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.)). of Appellate Procedure 47.1.”); Stafford, 813 S.W.2d at 509. There is no reversible error in the record. Accordingly, the judgment of the trial court is affirmed.

III. MOTION TO WITHDRAW In accordance with Anders, appellant’s attorney 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.) (“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.”)). 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 this opinion and this Court’s judgment to appellant and to advise him of his right to file a petition for discretionary review.4 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).

GREGORY T. PERKES Justice Do not publish.

TEX. R. APP. P. 47.2(b).

Delivered and filed the 3rd day of July, 2014.

4 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 or timely motion for en banc reconsideration that was overruled by this Court. See TEX. R. APP. P. 68.2. Any petition for discretionary review must be filed with the clerk of the Court of Criminal Appeals, see TEX. R. APP. P. 68.3, and should comply with the requirements of Texas Rule of Appellate Procedure 68.4, see TEX. R. APP. P. 68.4.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.