Chavez v. State

• Decision Date: 10 June 2004
• Docket Number: No. 13-03-174-CR.,No. 13-03-175-CR.,13-03-174-CR.,13-03-175-CR.
• Citation: 139 S.W.3d 43
• Parties: Enrique Ruelas CHAVEZ, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

139 S.W.3d 43

Enrique Ruelas CHAVEZ, Appellant, v. The STATE of Texas, Appellee.

No. 13-03-174-CR.

No. 13-03-175-CR.

Court of Appeals of Texas, Corpus Christi-Edinburg.

June 10, 2004.

Appeal from the 138th District Court, Cameron County, Robert Garza, J Arnoldo R. Pena, Brownsville, for appellant.

Enrique Ruelas Chavez, appellant pro se.

Yolanda De Leon, District Attorney, Brownsville, for the State.

Before Chief Justice VALDEZ and Justices HINOJOSA and CASTILLO.

OPINION

Opinion by Justice CASTILLO.

Appellant Enrique Ruelas Chavez appeals his convictions for murder¹ and possession of a controlled substance with intent to deliver,² both first-degree felonies.³ Chavez pleaded guilty to both charges pursuant to agreed punishment recommendations. The trial court honored the plea agreements and sentenced him on each charge to thirty years confinement in the Institutional Division of the Texas Department of Criminal Justice, to run concurrently. We conclude that Chavez's appeals are frivolous and without merit. We dismiss.

I. BACKGROUND

On December 3, 2002, Chavez filed timely notices of appeal that invoked our jurisdiction. The rules of appellate procedure governing how appeals proceed in criminal cases were amended effective January 1, 2003. This Court applies those amended rules of appellate procedure to all cases on appeal on the effective date of the amendments. See, e.g., Gibson v. State, 117 S.W.3d 567, 570 (Tex.App.-Corpus Christi 2003, pet. granted). Accordingly, on August 28, 2003, we abated both cases for filing of the trial court's certifications of Chavez's right to appeal ("CORTAs"). As required by current rule 25.2 of the rules of appellate procedure, on October 2, 2003, the trial court filed CORTAs stating that these are plea-bargain cases, and Chavez has no right of appeal. See Tex.R.App. P. 25.2(a)(2). On filing of the CORTAs, we reinstated the cases on October 6, 2003. On October 28, 2003, Chavez's court-appointed appellate counsel filed a brief in which he concludes that these appeals are frivolous. See Anders v. California, 386 U.S. 738, 744-45, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). The cases were submitted without oral argument on January 5, 2004. On February 9, 2004, after receipt of counsel's Anders brief, Chavez notified this Court he did not have a copy of his appellate records. He asked this Court to furnish them. On March 11, 2004, we abated the cases again and, in the interest of justice, ordered counsel to provide copies of the records to Chavez. On April 19, 2004, Chavez filed a pro se brief in response to counsel's Anders brief. We again reinstated the cases.

Rule 25.2(d) provides that we must dismiss an appeal if the CORTA does not show that the appellant has the right of appeal. TEX.R.APP. P. 25.2(d). However, this Court, on receipt of a "frivolous appeal" brief, must perform an independent review of the record to determine any grounds for appeal. Penson v. Ohio, 488 U.S. 75, 80, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988) (citing Anders, 386 U.S. at 744-45, 87 S.Ct. 1396). A CORTA showing no right to appeal does not eliminate our duty to perform an independent review of the record on receipt of an Anders brief. Accordingly, we first examine the scope of our duty to review the record independently in an Anders case in which the trial court has certified that the appellant has no right of appeal.

II. SCOPE OF INDEPENDENT ANDERS REVIEW

The legislative grant of procedural rule-making authority to the court of criminal appeals is not unlimited: "The court of criminal appeals is granted rule making power to promulgate rules of post-trial, appellate, and review procedure in criminal cases except that its rules may not abridge, enlarge, or modify the substantive rights of a litigant." See TEX. GOV'T CODE ANN. § 22.108(a) (Vernon Supp.2004); Shankle v. State, 119 S.W.3d 808, 812 (Tex.Crim.App.2003). In fact, the court of criminal appeals has specifically stated that a plea-bargaining defendant's right to appeal may not be abridged, enlarged, or modified by appellate rule 25.2. See Shankle, 119 S.W.3d at 812. Accordingly, rule 25.2 certification issues should not affect an appellant's substantive rights.

Indigent defendants have a constitutional right to representation on appeal. See generally Douglas v. California, 372 U.S. 353, 357, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963). In Anders, the United States Supreme Court set up a "prophylactic framework" to protect the constitutional right to counsel. Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987). Under Anders, a state appellate court may not refuse to provide counsel to brief and argue an indigent criminal defendant's first appeal based on the appointed appellate attorney's conclusory statement that the case has no merit and does not warrant the filing of an appellate brief. Penson, 488 U.S. at 80, 109 S.Ct. 346 (citing Anders, 386 U.S. at 744-45, 87 S.Ct. 1396). Rather, Anders mandates that appellate courts perform an independent review of the entire record to determine whether there are any arguable grounds that might support an appeal. See Anders, 386 U.S. at 744-45, 87 S.Ct. 1396; see also Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim.App.1991). An appeal is not frivolous if it presents issues that are "arguable on their merits." Anders, 386 U.S. at 744, 87 S.Ct. 1396. An appeal is "wholly frivolous" or "without merit" when it lacks "any basis in law or fact." McCoy v. Court of Appeals, 486 U.S. 429, 438 n. 10, 108 S.Ct. 1895, 100 L.Ed.2d 440 (1988).

A state's appellate procedures must "afford adequate and effective appellate review to indigent defendants." Griffin v. Illinois, 351 U.S. 12, 20, 76 S.Ct. 585, 100 L.Ed. 891 (1956). An indigent must receive "substantial equality" compared to the legal assistance a defendant with paid counsel would receive, although "absolute equality" is not required. Smith v. Robbins, 528 U.S. 259, 277 n. 9, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000). Accordingly, in cases where the CORTA shows no right to appeal, but an Anders brief has been filed, we still must perform an independent review of the record as mandated by Anders to safeguard the indigent defendant's rights through an "adequate and effective appellate review."

Under prior law, litigants enjoyed certain limited rights to appeal that are neither referenced in rule 25.2 nor included in the CORTA form promulgated by the Texas Court of Criminal Appeals and provided in the appendix to the appellate rules (the "CORTA Form"). In particular, the CORTA Form does not recognize certain rights of appeal historically enjoyed by plea-bargaining defendants in Texas. Accordingly, we take this opportunity to discuss: (1) the limitations on and extent of our review power in an appeal following a plea bargain; and (2) the scope of our Anders duty to review the record independently when the trial court has certified that a plea-bargaining defendant has no right of appeal.

A. The Right of Appeal in Criminal Cases

Texas law provides the defendant in a criminal case a statutorily created right of appeal. TEX.CODE CRIM. PROC. ANN. art. 44.02.⁴ As noted above, procedural rules govern when and how an appeal may proceed but may not enlarge, abridge, or modify a legislatively granted right of appeal. TEX. GOV'T CODE ANN. § 22.108 (Vernon Supp.2004); Johnson v. State, 84 S.W.3d 658, 661 n. 6 (Tex.Crim.App.2002). Once a criminal defendant invokes our jurisdiction by filing a notice of appeal, we then must determine how the appeal may proceed. Since January 1, 2003, we turn to the CORTA, not the notice of appeal, to make that determination. However, criminal defendants in Texas have rights to appeal that are neither specifically addressed in the language of rule 25.2 nor reflected in the CORTA Form. See Carroll v. State, 119 S.W.3d 838, 840 (Tex.App.-San Antonio 2003, no pet.) (per curiam) (noting that CORTA Form does not reflect right of defendant to appeal issues unrelated to conviction following deferred adjudication of guilt).

B. Historical Limitations Imposed on Criminal Appeals by Former Rule 40(b)(1) and Former Rule 25.2(b)(3)

For appeals commenced before January 1, 2003, the rules of appellate procedure limited a defendant's right of appellate review following a plea entered in a felony case pursuant to an agreed punishment recommendation if "the punishment assessed did not exceed the punishment recommended by the prosecutor and agreed to by the defendant." TEX.R.APP. P. 25.2(b)(3) (amended effective January 1, 2003);⁵ Ramirez v. State, 89 S.W.3d 222, 225 (Tex.App.-Corpus Christi 2002, no pet.). In that event, to comply with the extra-notice requirements of former rule 25.2(b)(3), the notice of appeal must have: (1) specified that the appeal was for a jurisdictional defect; (2) specified that the substance of the appeal was raised by written motion and ruled on before trial; or (3) stated that the trial court granted permission to appeal. Tex.R.App. P. 25.2(b)(3) (amended effective January 1, 2003);⁶ Ramirez, 89 S.W.3d at 225. This provision of former rule 25.2(b)(3) was incorporated in part into current rule 25.2. Nonetheless, an "agreed punishment recommendation" is still required before limitations on our review power apply.

An agreement between the State and a defendant may be a plea bargain without having as one of its terms an agreed punishment recommendation that is followed by the trial court. Ramirez, 89 S.W.3d at 225 n. 4. Any concession by the State in exchange for the defendant's guilty plea creates a plea bargain. Id. Only a plea bargain that incorporates an agreed recommendation as to punishment and is accepted by the court, however, triggers restrictions on our review power. Id. While rule 25.2(a)(2) explains that a "plea bargain" includes an "agreed punishment recommendation that the trial court followed," the CORTA Form does not differentiate between "plea bargain" and "agreed punishment recommendation...