NUMBER 13-12-00098-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
JAMES GONZALEZ A/K/A JAMES A. GONZALES, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 28th District Court
of Nueces County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Garza, and Perkes
Memorandum Opinion by Justice Rodriguez
Appellant James Gonzalez a/k/a James A. Gonzales appeals from his conviction
for driving while intoxicated, a third-degree felony as a result of appellant's two prior DWI
convictions. See TEX. PENAL CODE ANN. §§ 49.04(a), 49.09(b)(2) (West Supp. 2011).
The indictment alleged two additional enhancements for his prior convictions for burglary
and murder, which, if true, subjected appellant to a minimum of twenty-five years'
incarceration as a habitual felony offender. See id. § 12.42(d) (West Supp. 2011).
Appellant entered an open plea of guilty to the charged offense and pleaded true to the
four enhancement paragraphs. The trial court sentenced appellant to twenty-five years'
incarceration and assessed court costs.
Concluding that the appeal in this case would be frivolous, counsel filed an Anders
brief in which he reviewed the merits, or lack thereof, of the appeal. We affirm.
I. COMPLIANCE WITH ANDERS V. CALIFORNIA
Pursuant to Anders v. California, 386 U.S. 738, 744 (1967), appellant's
court-appointed appellate counsel has filed a brief with this Court, stating that he has
diligently reviewed the record and the applicable law and concluding that, in his
professional opinion, "there are no grounds of error upon which an appeal can be
predicated" and that "the appeal is wholly without merit." 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.—Corpus
Christi 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 807, 813 (Tex. Crim. App. [Panel
Op.] 1978), appellant's counsel has, thus, carefully discussed why, under controlling
authority, there are no errors in the trial court's judgment. Counsel has informed this
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Court that he has: (1) examined the record and found no arguable grounds to advance
on appeal, (2) served his brief and motion to withdraw on appellant, and (3) informed
appellant of his right to review the record and to file a pro se response. 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.
Appellant filed a pro se response on December 21, 2012 and a further reply to the
State's brief on April 4, 2013. When appellate counsel files an Anders brief and the
appellant independently files a pro se brief, the court of appeals has two choices: "[i]t
may determine that the appeal is wholly frivolous and issue an opinion explaining that it
has reviewed the record and finds no reversible error. Or, it may determine that arguable
grounds for appeal exist and remand the cause to the trial court so that new counsel may
be appointed to brief the issues." Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim.
App. 2005). We are not required to review the merits of each claim raised in an Anders
brief or a pro se response—rather, we must merely determine if there are any arguable
grounds for appeal. Id. at 827. If we so determine, we must remand for appointment of
new counsel. Id. Reviewing the merits raised in a pro se brief would deprive an
appellant of meaningful assistance of counsel. Id. Accordingly, we will independently
review the record to determine if there are any arguable grounds for appeal.
II. INDEPENDENT REVIEW
The United States Supreme Court has advised appellate courts that upon
receiving a "frivolous appeal" brief, they must conduct "a full examination of all the
proceedings to decide whether the case is wholly frivolous." Penson v. Ohio, 488 U.S.
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75, 80 (1988). We have reviewed the entire record, counsel's brief, appellant's pro se
response, the State's brief, and appellant's reply to the State's brief, and we have found
nothing that would arguably support an appeal. See Bledsoe, 178 S.W.3d at 826–28
("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. Accordingly, we affirm the judgment of the trial court.
III. MOTION TO WITHDRAW
In accordance with Anders, appellant's attorney has 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.) (noting that "[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 motion to withdraw, carried with the case on November 6, 2012. Within
five days of the date of this Court’s opinion, counsel is ordered to send a copy of the
opinion and judgment to appellant and to advise him of his right to file a petition for
discretionary review.1 See TEX. R. APP. P. 48.4; see also In re Schulman, 252 S.W.3d at
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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. Any
petition for discretionary review must be filed with the clerk of the Court of Criminal Appeals. See TEX. R.
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412 n.35; Ex parte Owens, 206 S.W.3d 670, 673 (Tex. Crim. App. 2006).
NELDA V. RODRIGUEZ
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
16th day of May, 2013.
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.
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