NUMBER 13-10-00301-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
MARCOS VILLAGOMEZ, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 156th District Court
of Bee County, Texas.
MEMORANDUM OPINION
Before Justices Garza, Vela, and Perkes
Memorandum Opinion by Justice Perkes
Appellant, Marcos Villagomez, appeals his conviction for attempted sexual
assault. See TEX. PENAL CODE ANN. §§ 15.01(a), 22.011(a) (West 2003 & Supp. 2010).
The offense was a third-degree felony, enhanced by two prior felony convictions. See id.
§§ 15.01(d), 22.011(f), 12.42(d) (West Supp. 2009). After a jury found appellant guilty of
the charged offense, the trial court received punishment evidence, found the
enhancement allegations to be true, and sentenced appellant to a term of thirty-five years
of confinement in the Texas Department of Criminal Justice. Appellant filed a notice of
appeal, and as discussed below, his court-appointed counsel filed an Anders brief. We
affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Appellant was living in his brother and sister-in-law‟s apartment. One morning
when his brother was away from the apartment, appellant attempted to sexually assault
his sister-in-law. Shortly after leaving the apartment with her children, she reported the
incident to law enforcement. Appellant‟s sister-in-law and family members who helped
her report the incident to law enforcement testified at trial.
II. ANDERS BRIEF
Pursuant to Anders v. California, 386 U.S. 738, 744 (1967), appellant‟s
court-appointed appellate counsel has 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).
2
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,
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.
III. 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 counsels‟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.
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.)).
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IV. 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. 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
14th day of April, 2011.
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 that
was overruled by this Court. See TEX. R. APP. P. 68.2. Any petition for discretionary review must be filed
with this Court, after which it will be forwarded to the Texas Court of Criminal Appeals. See TEX. R. APP. P.
68.3, 68.7. 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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