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NUMBER 13-00-435-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI B EDINBURG
JUAN ANTONIO PEREZ, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 103rd District Court
of Cameron County, Texas.
M E M O R A N D U M O P I N I O N
Before Chief Justice Valdez and Justices Castillo and Garza
Opinion by Chief Justice Valdez
Appellant, Juan Antonio Perez, originally filed his appeal with this Court, alleging that the trial court erred and abused its discretion by denying appellant a copy of the reporter=s record of the cause without cost so that appellant could pursue his appeal. By order dated April 10, 2003, this Court found that the trial court had abused its discretion and, accordingly, ordered that the reporter=s record be prepared and made available to counsel for appellant. We also ordered appellant=s counsel to file a supplemental brief in order to raise any colorable issues on appeal.
After appellant=s counsel failed to file the supplemental brief, despite being granted numerous extensions, we abated the appeal and remanded the cause to the trial court for further proceedings. We requested that the trial court give notice to the parties and conduct a hearing to determine (1) whether appellant desired to prosecute the appeal, and (2) whether appellant had been denied the effective assistance of counsel due to appellate counsel's failure to timely file an appellate brief. See Tex. R. App. P. 38.8(b)(2), (4).
The trial court gave notice and conducted the hearing as ordered, then filed its ARecommendations to the Appellate Court@ with this Court. In its ARecommendations,@ the court noted that it concluded, after the hearing, that appellant had not been denied the effective assistance of counsel due to appellant=s counsel=s failure to timely file an appellate brief because appellant Agave mixed signals to his attorney regarding his wish to continue the appeal.@ The trial court then directed appellant to respond by letter to the court by July 26, 2005, stating whether he desired to prosecute the appeal. The trial court allowed an extra week for appellant to respond, and after receiving no response by August 3, 2005, concluded that appellant no longer wished to prosecute the appeal and recommended to this Court that the appeal be dismissed.
After the trial court=s recommendations had been received by this Court, appellant=s counsel filed the earlier-requested supplemental brief on August 15, 2005. Counsel failed to request permission from this Court to file his out-of-time supplemental brief, see Tex. R. App. P. 38.6; however, in the interests of justice, we have reviewed the supplemental brief. In this brief, counsel stated that he had diligently searched the record and it was his professional evaluation that no reversible error is reflected in the record and, furthermore, any appeal would be without merit and frivolous. See Anders v. California, 386 U.S. 738, 744 (1967) (establishing requirements for Afrivolous appeals@ briefs). In conjunction with the filing of this brief, counsel also informed appellant that he had the right to file a pro se appellate brief and to review the record. See McMahon v. State, 529 S.W.2d 771, 772 (Tex. Crim. App. 1975); Johnson v. State, 885 S.W.2d 641, 646 (Tex. App.BWaco 1994, pet. ref'd) (per curiam). Over thirty days have passed since appellant was informed of his rights, and no pro se brief has been filed by appellant.
Because counsel=s Anders brief was filed out of time, we are not obligated to consider it. Out of an abundance of caution, however, we have reviewed the record in accordance with our normal standards in Anders cases, and we can find no colorable issues for appeal. See Penson v. Ohio, 488 U.S. 75, 80 (1988). Accordingly, we adopt the recommendation of the trial court regarding dismissal of this appeal. See Tex. R. App. P. 43.2(f). This appeal is dismissed.
Rogelio Valdez,
Chief Justice
Do not publish.
Tex. R. App. P. 47.2(b).
Memorandum Opinion delivered and filed
this 1st day of December, 2005.