NUMBER 13-12-00595-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
DAVID AVELLANEDA, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 347th District Court
of Nueces County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Benavides and Longoria
Memorandum Opinion by Justice Longoria
Appellant, David Avellaneda, was charged by indictment with intentional or
knowing injury to a child, a first-degree felony. TEX. PENAL CODE ANN. § 22.04(a), (e)
(West Supp 2011). He pleaded guilty without a plea agreement to the lesser-included
offense of reckless injury to a child, a second-degree felony. Id. § 22.04(f). The trial
court judge assessed imprisonment for a term of twenty years in the Texas Department
of Criminal Justice—Institutional Division. This appeal followed.1
I. ANDERS BRIEF
Appellant’s court-appointed appellant counsel has filed a brief and motion to
withdraw with this Court pursuant to Anders v. California, 386 U.S. 738, 744 (1967),
stating that his review of the record yielded no grounds of error upon which to base an
appeal. 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, 406 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, 507 S.W.2d 807, 813 (Tex. Crim. App. [Panel
Op.] 1978), appellant’s counsel carefully discussed why, under controlling authority,
there is no reversible error 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;
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,
1
The trial court granted appellant the right to appeal even though he executed a waiver of his
appellate rights as part of his guilty plea.
2
252 S.W.3d at 409 n.23. More than a sufficient time has passed but appellant has not
responded by filing a pro se response.
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, including appellant’s judicial
confession and the transcript of the sentencing hearing, and counsel’s brief, and we
have found nothing that would arguably support an appeal. See Bledsoe, 178 S.W.3d
at 827–28 (“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”). We agree that there is no reversible error. 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.) (“[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. Counsel is ordered to send a copy of this opinion and this Court’s
judgment to appellant within five days of the date of this Court’s opinion, and to advise
him of his right to file a petition for discretionary review with the court of criminal
3
appeals.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).
_______________________
NORA L. LONGORIA
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
2nd day of May, 2013.
2
No substitute counsel will be appointed. Should Avellaneda 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. APP. P. 68.3. Any petition for discretion review should comply with the requirements of Texas
Rule of Appellate Procedure 68.4. See TEX. R. APP. P. 68.4.
4