COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
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MARCELINO FRED RODRIGUEZ, No. 08-14-00032-CR
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Appellant, Appeal from the
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v. 292nd Judicial District Court
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THE STATE OF TEXAS, of Dallas County, Texas
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Appellee. (TC# F11-22577-WV)
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MEMORANDUM OPINION
Marcelino Fred Rodriguez appeals the trial court’s judgment convicting him of unlawful
possession of a controlled substance weighing less than one gram, enhanced by a prior felony
conviction.1 We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
After being indicted for the offense identified above, Rodriguez entered an open plea of
guilty. In conjunction with his open plea, Rodriguez judicially confessed and signed plea
admonishments, which adequately informed him of his rights. In the written admonishments,
Rodriguez waived his rights and acknowledged that his “statements and waivers [were]
knowingly, freely, and voluntarily made with full understanding of the consequences.”
1
Rodriguez is also appealing the trial court’s judgments in two companion cases tried concurrently with this case. In
appellate cause No. 08-14-00033-CR, he appeals his conviction for unlawful possession of a firearm by a felon. In
appellate cause No. 08-14-00046-CR, he appeals his conviction for burglary of a habitation.
At the plea hearing, the trial court accepted Rodriguez’s plea after ascertaining that he
understood the charge against him and the enhanced range of punishment. The trial court also
took judicial notice of the contents of its file and admitted into evidence, without objection, the
written plea admonishments and certified copies of five prior convictions. The trial court then
heard testimony from Rodriguez, his mother, and two of his victims. Rodriguez admitted he was
pleading guilty, accepted responsibility for his crime, and requested leniency on the basis that his
“actions were not intentional but being controlled by [his] drug addiction” following his father’s
death. After listening to closing arguments, the trial court found Rodriguez guilty, the
enhancement true, and sentenced him to ten years’ imprisonment.2 See TEX.HEALTH & SAFETY
CODE ANN. § 481.115(b)(West 2010)(unlawful possession of cocaine in an amount less than one
gram is a state jail felony); TEX.PENAL CODE ANN. § 12.425(c)(West Supp. 2014)(state jail felony
enhanced by prior felony is punishable as a second-degree felony); TEX.PENAL CODE ANN.
§ 12.33(a)(West 2011)(range of punishment for second-degree felony is 2 to 20 years’
imprisonment). When asked by the trial court if there was any legal reason why Rodriguez’s
sentence could not be pronounced then and there, defense counsel answered in the negative.
ANDERS BRIEF
Rodriguez’s court-appointed appellate counsel has filed an Anders brief.3 See Anders v.
California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); High v. State, 573 S.W.2d 807,
813 (Tex.Crim.App. [panel op.] 1978)(adopting the Anders procedure); see also Stafford v. State,
813 S.W.2d 503, 509-11 (Tex.Crim.App. 1991). In Anders, the United States Supreme Court
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This sentence ran concurrent to the sentences imposed in the two companion cases.
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Counsel was also appointed to represent Rodriguez in the two companion cases identified in footnote number one.
In each of those cases, counsel filed an Anders brief as well.
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recognized that counsel, though appointed to represent the appellant in an appeal from a criminal
conviction, had no duty to pursue a frivolous matter on appeal. Anders, 386 U.S. at 744, 87 S.Ct.
at 1400. Counsel was thus permitted to withdraw after informing the court of his conclusion and
the effort made in arriving at that conclusion. Id.
In this case, Rodriguez’s counsel has concluded that after a thorough review of the record,
Rodriguez’s appeal is frivolous and without merit. Counsel’s brief meets the requirements of
Anders by presenting a professional evaluation of the record demonstrating why there are no
arguable grounds to be advanced. See Anders, 386 U.S. at 744, 87 S.Ct. at 1400. In accordance
with Anders’s requirements, counsel has moved to withdraw. As required, counsel notified
Rodriguez of the Anders brief and provided him with a copy of it, advised him of his right to
examine the appellate record and file a pro se brief in this Court, and informed this Court, in
writing, that she performed the foregoing requirements. Kelly v. State, 436 S.W.3d 313, 319
(Tex.Crim.App. 2014); In re Schulman, 252 S.W.3d 403, 408 (Tex.Crim.App. 2008). Counsel
also satisfied her obligation to “take concrete measures to initiate and facilitate the process of
actuating [her] client’s right to review the appellate record, if that is what [her] client wishes[,]” by
providing Rodriguez with a copy of the appellate record. Kelly, 436 S.W.3d at 319. Rodriguez
has not filed a pro se brief.
INDEPENDENT REVIEW
After counsel files a proper Anders brief, the court of appeals must conduct its own review
of the record to ascertain if there are any arguable grounds for the appeal. Schulman, 252 S.W.3d
at 409; Stafford, 813 S.W.2d at 511. We have thoroughly reviewed the record and counsel’s brief
in this case, and we agree with counsel’s professional assessment that the appeal is frivolous and
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without merit. Because there is nothing in the record that might arguably support the appeal, a
further discussion of the arguable grounds advanced in counsel’s Anders brief would add nothing
to the jurisprudence of the State.
CONCLUSION
We affirm the trial court’s judgment and grant counsel’s motion to withdraw.
January 16, 2015
YVONNE T. RODRIGUEZ, Justice
Before McClure, C.J., Rodriguez, and Hughes, JJ.
(Do Not Publish)
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