Rodriguez v. State

• Decision Date: 17 May 2018
• Docket Number: NUMBER 13-16-00653-CR,NUMBER 13-16-00655-CR
• Parties: DAVID RODRIGUEZ, Appellant, v. THE STATE OF TEXAS, Appellee.
• Court: Texas Court of Appeals

DAVID RODRIGUEZ, Appellant, v. THE STATE OF TEXAS, Appellee.

NUMBER 13-16-00653-CR

NUMBER 13-16-00655-CR

COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG

May 17, 2018

On appeal from the 139th District Court of Hidalgo County, Texas.

MEMORANDUM OPINION

Before Justices Rodriguez, Contreras, and Hinojosa

Memorandum Opinion by Justice Contreras

Appellant David Rodriguez is the subject of two judgments of conviction:

• The first conviction, appellate cause number 13-16-00655-CR, is for sexual assault of a child, a second-degree felony, see TEX. PENAL CODE ANN. § 22.011 (West, Westlaw through 2017 1st C.S.), for which the trial court sentenced Rodriguez to ten years' imprisonment after revoking his deferred adjudication community supervision.

• The second conviction, appellate cause number 13-16-00653-CR, is for aggravated sexual assault of a child, a first-degree felony, see id. § 22.021 (West, Westlaw through 2017 1st C.S.), for which the trial court sentenced Rodriguez to life imprisonment. See id. § 12.42(c)(2) (West, Westlaw through 2017 1st C.S.) (providing an automatic life sentence for certain repeat sexual offenders).

The trial court set the sentences to run concurrently. Rodriguez's court-appointed appellate counsel has filed an Anders brief under both causes, see Anders v. California, 386 U.S. 738, 744 (1967), and Rodriguez has filed a pro se response under cause number 13-16-00655-CR. We affirm both convictions in this memorandum opinion.

I. ANDERS BRIEF

Under each cause number, Rodriguez's court-appointed 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 found no non-frivolous grounds for appeal. See id.; High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel Op.] 1978). Counsel's briefs meet the requirements of Anders as they present a thorough, professional evaluation of the record under each cause number showing why there are no arguable grounds for advancing an appeal. See In re Schulman, 252 S.W.3d 403, 407 n.9 (Tex. Crim. App. 2008) (orig. proceeding) ("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 (Tex. App.—CorpusChristi 2003, no pet.)); Stafford v. State, 813 S.W.2d 503, 510 n.3 (Tex. Crim. App. 1991) (en banc).

In compliance with High v. State, 573 S.W.2d at 813, and Kelly v. State, 436 S.W.3d 313, 319-20 (Tex. Crim. App. 2014), counsel carefully discussed why, under controlling authority, there is no reversible error in the trial court's judgments. Appellant's counsel has also informed this Court that he has: (1) notified Rodriguez that he has filed an Anders brief and a motion to withdraw in each cause; (2) provided Rodriguez with copies of both filings; (3) informed Rodriguez of his rights to file a pro se response,¹ to review the record preparatory to filing that response, and to seek discretionary review in the Texas Court of Criminal Appeals if this Court finds that the appeal is frivolous; and (4) provided Rodriguez with a form motion for pro se access to the appellate record with instructions to file the motion in this Court. See Anders, 386, U.S. at 744; Kelly, 436 S.W.3d at 319-20; see also In re Schulman, 252 S.W.3d at 609 n.23. On November 28, 2017, Rodriguez filed a pro se response with this Court, see In re Schulman, 252 S.W.3d at 409, in which he argued that: (1) he was deprived of his right to jury unanimity, and (2) trial counsel's performance was ineffective because he failed to object to the jury charge and did not request that the State make an election on which offense it relied on for a conviction. Rodriguez also argued his appellate counsel rendered ineffective assistance.

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 record for each cause number, counsel's briefs, and Rodriguez's pro se response, and we have found no reversible error. 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 of Appellant Procedure 47.1."); Stafford, 813 S.W.2d at 509. Accordingly, we affirm the judgments of the trial court.

III. MOTION TO WITHDRAW

In accordance with Anders, Rodriguez's counsel has asked this Court for permission to withdraw from cause number 13-16-00653-CR and 13-16-00655-CR. See Anders, 386 U.S. at 744; see also In re Schulman, 252 S.W.3d at 408 n.17 (citing Jeffrey v. State, 903 S.W.3d 776, 779-80 (Tex. App.—Dallas 1995, no pet.) ("[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 motions to withdraw.²

We order counsel to send a copy of this opinion and judgments to Rodriguez, and to advise him of his right to file any petition for discretionary review, within five days of thedate of this opinion.³ 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, 67 (Tex. Crim. App. 2006).

IV. CONCLUSION

We affirm the trial court's judgments of conviction under appellate cause numbers 13-16-00653-CR and 13-16-00655-CR.

DORI CONTRERAS

Justice

Do not publish.

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

Delivered and filed the 17th day of May, 2018.

1. 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).

2. Rodriguez's appellate counsel filed one motion to withdraw under 13-16-00653-CR and two motions to withdraw under cause number 13-16-00655-CR. We grant counsel's motion to withdraw under 13-16-00653-CR and one of the motions to withdraw under 13-16-00655-CR. We dismiss the remaining motion to withdraw under 13-16-00655-CR as moot.

3. No substitute counsel will be appointed in appellate cause numbers 13-16-00653-CR and 13-16-00655-CR. If Rodriguez seeks further review of appellate cause numbers 13-16-00653-CR and 13-16-00655-CR 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 ...