Escochea v. State

• Citation: 139 S.W.3d 67
• Decision Date: 17 June 2004
• Docket Number: No. 13-01-761-CR.,13-01-761-CR.
• Parties: Rene ESCOCHEA, Appellant, v. The STATE of Texas, Appellee.
• Court: Court of Appeals of Texas

139 S.W.3d 67

Rene ESCOCHEA, Appellant, v. The STATE of Texas, Appellee.

No. 13-01-761-CR.

Court of Appeals of Texas, Corpus Christi-Edinburg.

June 17, 2004.

Appeal from the 148th Judicial District Court, Nueces County, Rose Vela, J Grant Jones, Corpus Christi, for appellant.

Carlos Valdez, Nueces County District Attorney, Corpus Christi, for the State.

Before Chief Justice VALDEZ and Justices RODRIGUEZ and CASTILLO.

OPINION

Opinion by Justice CASTILLO.

Appellant Rene Escochea appeals his conviction for attempted sexual assault, a third-degree felony.¹ Escochea pleaded guilty pursuant to an agreed punishment recommendation. On October 9, 2001, the trial court honored the plea agreement and sentenced him to five years confinement in the Institutional Division of the Texas Department of Criminal Justice. We conclude that Escochea's appeal is frivolous and without merit. We dismiss.

I. BACKGROUND

On October 19, 2001, Escochea filed a pro se letter with the trial court complaining of his trial counsel's representation. Construing the letter as a motion, on October 25, 2001 the trial court denied Escochea permission to appeal. The trial court permitted Escochea's trial counsel to withdraw and appointed appellate counsel for him. Escochea's appellate counsel filed a brief in which counsel concludes that the appeal is frivolous because Escochea's general notice of appeal does not confer jurisdiction on this Court. See Anders v. California, 386 U.S. 738, 744-45, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Counsel did not have the benefit at the time he filed the Anders brief of the court of criminal appeals' decision in Bayless v. State, 91 S.W.3d 801 (Tex.Crim.App.2002). Bayless held that: (1) a timely general notice of appeal conferred jurisdiction on this Court; and (2) amendment of a timely filed notice of appeal was permitted any time before the defendant's brief was filed. Bayless, 91 S.W.3d at 803 n. 2.

Thus, Escochea's timely notice of appeal generally asserting his desire to appeal invoked our jurisdiction. See id. 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., Chavez v. State, Nos. 13-03-174-CR & 13-03-175-CR, 139 S.W.3d 43, 47, 2004 WL 1277974, at *1 (Tex.App.-Corpus Christi June 10, 2004, no pet. h.). Accordingly, we abated the appeal on July 21, 2003 and ordered a supplemental record to include, in compliance with rule 25.2(a)(2), the trial court's certification of Escochea's right to appeal (a "CORTA"). See Tex.R.App. P. 25.2(a)(2). On August 20, 2003, the trial court filed a CORTA stating that this is a plea-bargain case, and Escochea has no right of appeal. On filing of the CORTA, we reinstated the case.

However, counsel's Anders brief did not recite that he notified Escochea of Escochea's right to review the appellate record to determine what issues to raise in a prospective pro se brief. See Johnson v. State, 885 S.W.2d 641, 646-47 (Tex.App.-Waco 1994, pet. ref'd) (per curiam). Therefore, on January 5, 2004, we again abated this appeal and ordered counsel to provide the record to Escochea. See McMahon v. State, 529 S.W.2d 771, 772 (Tex.Crim.App.1975) (abating appeal and ordering Anders counsel to inform appellant of right to review record and file pro se brief). On February 10, 2004, we received a letter from counsel indicating compliance with our order. More than thirty days have elapsed since the date of counsel's letter. Escochea has not filed a pro se brief.

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. Chavez, 139 S.W.3d at 43, 2004 WL 1277974, at *1. We note that Escochea executed a waiver of his right to appeal when he pleaded guilty to the offense. Accordingly, we first examine the scope of our duty to review the record independently in an Anders case in which: (1) the appellant executed a waiver of the right to appeal; and (2) the trial court has certified that the appellant has no right of appeal.²

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. Further, we conclude that the validity of a written waiver of the right to appeal is one of the substantive issues not affected by rule 25.2 certification issues. See Perez v. State, 129 S.W.3d 282, 287-88 (Tex.App.-Corpus Christi 2004, no pet. h.) (discussing validity of written waiver of right to appeal).

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. Further, prior law recognized that a written waiver of the right to appeal may not be valid. 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 a plea-bargaining defendant has signed a waiver of the right to appeal, and the trial court has certified that the 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. 44.02.³ 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). Appellants also may challenge, under certain circumstances, the validity of any written waiver of the right to appeal. See Perez, 129 S.W.3d at 287-88. Neither rule 25.2 nor the CORTA Form recognizes an appellant's right to challenge the...