NUMBER 13-11-00139-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
RENE RIVAS JR., Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 103rd District Court
of Cameron County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Garza and Vela
Memorandum Opinion by Chief Justice Valdez
Appellant, Rene Rivas Jr., was charged with two counts of aggravated assault,
see TEX. PENAL CODE ANN. § 22.02 (West Supp. 2010), and one count of aggravated
sexual assault, see id. § 22.021(a)(1)(A)(i) (West Supp. 2010). The jury found Rivas not
guilty of aggravated sexual assault and both counts of aggravated assault. However,
the jury found Rivas guilty of one count of assault and one count of sexual assault,
which are lesser included offenses. See id. §§ 22.01(a)(1) (assault), 22.011(a)(1)
(sexual assault) (West Supp. 2010). The trial court sentenced Rivas to twenty years’
confinement for the sexual assault and one year for the assault with the sentences to
run concurrently. Rivas=s appellate counsel, concluding that the appeal in this cause is
frivolous, filed an Anders brief, in which he reviewed the merits, or lack thereof, of the
appeal. We affirm.
I. ANDERS BRIEF
Pursuant to Anders v. California, 386 U.S. 738, 744 (1967), Rivas’s appellate
counsel has filed a brief with this Court stating that he has found no reversible error
committed by the trial court and no arguable ground 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. Counsel’s brief sets out, in great detail, relevant portions of the record that
may provide potentially appealable issues. See In re Schulman, 252 S.W.3d 403, 407
n.9 (Tex. Crim. App. 2008) (AIn 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), Rivas’s counsel has carefully discussed why, under controlling authority,
there are no errors in the trial court’s judgment. Counsel has informed this Court that he
has forwarded a copy of his brief to appellant and has informed appellant of his right 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. Rivas’s attorney did not forward a
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copy of the record to Rivas. However, on October 4, 2011, this Court granted Rivas’s
motion for a free reporter’s record and ordered the trial court to make the appellate
record available to him. Additionally, we granted Rivas an extension of time to file a pro
se response within thirty days of receiving a copy of the record. The trial court informed
us that Rivas received the appellate record on October 28, 2011. We received Rivas’s
pro se response on December 12, 2011.1 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, counsel’s brief, and Rivas’s
pro se response; however, we have found nothing that would arguably support an
appeal. See Bledsoe v. State, 178 S.W.3d 824, 826-28 (Tex. Crim. App. 2005) (ADue 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
1
In his pro se response, Rivas points to several errors he alleges occurred in the trial court, but
then concedes that none of these alleged errors have been preserved for our review. Instead, Rivas
maintains that his trial counsel provided ineffective assistance of counsel. However, Rivas then concedes
that trial counsel’s reasons for his acts or omissions are unknown because they are not firmly founded in
the record.
Although Rivas’s attempt at a direct appeal has been unsuccessful, he is not without a potential
remedy. Challenges requiring development of a record to substantiate a claim such as ineffective
assistance of counsel may be raised in an application for writ of habeas corpus. See TEX. CODE CRIM.
PROC. ANN. art. 11.07 (West Supp. 2010). An application for writ of habeas corpus relief would ―provide
an opportunity to conduct a dedicated hearing to consider the facts, circumstances, and rationale behind
counsel’s actions at . . . trial.‖ Thompson v. State, 9 S.W.3d 808, 814–15 (Tex. Crim. App. 1999).
3
In accordance with Anders, Rivas’s attorney has asked this Court for permission
to withdraw as counsel. 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.) (AIf 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.
Within five days of the date of this Court’s opinion, counsel is ordered to send a copy of
the opinion and judgment to Rivas and 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).
_________________
ROGELIO VALDEZ
Chief Justice
Do not Publish.
TEX. R. APP. P. 47.2(b)
Delivered and filed the
12th day of January, 2012.
2
No substitute counsel will be appointed. Should Rivas 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 Texas Court of
Criminal Appeals. See id. R. 68.3. Any petition for discretionary review should comply with the
requirements of Rule 68.4 of the Texas Rules of Appellate Procedure. See id. R. 68.4.
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