NUMBER 13-12-00371-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
ALBERT CUELLAR, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 28th District Court
of Nueces County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez, Justices Garza, and Perkes
Memorandum Opinion by Justice Perkes
Appellant Albert Cuellar pleaded guilty to driving while intoxicated (DWI), his third
DWI offense, a third-degree felony. See TEX. PENAL CODE ANN. § 49.04(a), 49.09(b)(2)
(West Supp. 2011). Appellant also pleaded “true” to a prior felony conviction, which
enhanced the DWI offense to a second-degree felony. See id. § 12.42(a) (West Supp.
2011). There was no plea bargain. The trial court assessed appellant’s punishment at
ten years’ incarceration in the Texas Department of Criminal Justice, Institutional
Division. Appellant filed a notice of appeal, and, as discussed below, his
court-appointed counsel filed an Anders brief. We affirm.
I. ANDERS BRIEF
Pursuant to Anders v. California, 386 U.S. 738, 744 (1967), appellant’s
court-appointed appellate counsel filed a brief and a motion to withdraw with this Court,
stating that his review of the record yielded no grounds of error upon which an appeal can
be predicated. Counsel’s brief meets the requirements of Anders as it presents a
professional evaluation demonstrating why there are no arguable grounds to advance on
appeal. See In re Schulman, 252 S.W.3d 403, 407 n.9 (Tex. Crim. App. 2008) (“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.—Corpus Christi 2003, no pet.)); Stafford v. State, 813 S.W.2d 503, 510 n.3
(Tex. Crim. App. 1991).
In compliance with High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel
Op.] 1978), appellant’s counsel has carefully discussed why, under controlling authority,
there are no reversible errors in the trial court’s judgment. Counsel has informed this
Court that he has: (1) examined the record and found no arguable grounds to advance
on appeal; (2) served a copy of the brief and counsel’s motion to withdraw on appellant;
2
and (3) informed appellant of his right to review the record and to file a pro se response.1
See Anders, 386 U.S. at 744; Stafford, 813 S.W.2d at 510 n.3; see also In re Schulman,
252 S.W.3d at 409 n.23. More than an adequate period of time has passed, and
appellant has not filed a pro se response. See In re Schulman, 252 S.W.3d at 409.
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 entire record and counsel’s brief, and have found
nothing that would arguably support an appeal. 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
Appellate Procedure 47.1.”); Stafford, 813 S.W.2d at 509. There is no reversible error in
the record. Accordingly, the judgment of the trial court is affirmed.
III. MOTION TO WITHDRAW
In accordance with Anders, appellant’s attorney asked this Court for permission to
withdraw as counsel for appellant. See Anders, 386 U.S. at 744; see also In re
Schulman, 252 S.W.3d at 408 n.17 (citing Jeffery v. State, 903 S.W.2d 776, 779–80 (Tex.
App.—Dallas 1995, no pet.) (“If an attorney believes the appeal is frivolous, he must
withdraw from representing the appellant. To withdraw from representation, the
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)
(quoting Wilson v. State, 955 S.W.2d 693, 696–97 (Tex. App.—Waco 1997, no pet.)).
3
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
motion to withdraw. Within five days of the date of this Court’s opinion, counsel is
ordered to send a copy of this opinion and this Court’s judgment to appellant and to
advise him of his right to file a petition for discretionary review. 2 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, 673 (Tex. Crim. App. 2006).
GREGORY T. PERKES
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
15th day of August, 2013.
2
No substitute counsel will be appointed. Should appellant wish to seek further review of this
case 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 TEX. R. APP. P. 68.2.
Effective September 1, 2011, any petition for discretionary review must be filed with the clerk of the Court of
Criminal Appeals. See TEX. R. APP. P. 68.3. Any petition for discretionary review should comply with the
requirements of Texas Rule of Appellate Procedure 68.4. See TEX. R. APP. P. 68.4.
4