Opinion issued December 13, 2012
In The
Court of Appeals
For The
First District of Texas
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NO. 01-12-00197-CR
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ANDREW LONGORIA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 262nd District Court
Harris County, Texas
Trial Court Cause No. 1303224
MEMORANDUM OPINION
Appellant Andrew Longoria pleaded guilty, pursuant to an agreed
recommendation from the State regarding punishment, to the second-degree-felony
offense of assault of a family member, “Second Offender and Impeding
Breathing.” See TEX. PENAL CODE ANN. § 22.01(b–1) (West 2011). In accordance
with appellant’s agreement with the State, the trial court deferred adjudication of
appellant’s guilt and placed him on community supervision for five years and
assessed a $500 fine. The State subsequently moved for adjudication, alleging that
appellant had violated the conditions of his community supervision by committing
a new offense; failing to maintain suitable employment during the months of July
and August 2011; failing to establish and pay child support; failing to perform
community service as ordered; failing to pay certain fees, fines, and costs; and
making false statements to a Harris County employee. Appellant pleaded “not
true” to the allegations. The trial court found the allegations true, found appellant
guilty of the underlying offense, and assessed punishment of confinement for
fifteen years and a $500 fine. Appellant timely filed a notice of appeal.
Appellant’s appointed appellate counsel has filed a motion to withdraw,
along with an Anders brief stating that the record presents no reversible error and
that, therefore, the appeal is frivolous. See Anders v. California, 386 U.S. 738, 87
S. Ct. 1396 (1967). We grant counsel’s motion to withdraw and affirm the trial
court’s judgment.
An attorney has an ethical obligation to refuse to prosecute a frivolous
appeal. In re Schulman, 252 S.W.3d 403, 407 (Tex. Crim. App. 2008). If an
appointed attorney finds a case to be wholly frivolous, her obligation to her client
is to seek leave to withdraw. Id. Counsel’s obligation to the appellate court is to
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assure it, through an Anders brief, that, after a complete review of the record, the
request to withdraw is well-founded. Id.
Counsel’s brief meets the Anders requirements by presenting a professional
evaluation of the record. See id. Counsel discusses the evidence adduced, supplies
us with references to the record, and provides us with citation to legal authorities.
See id. at 411; High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. 1978).
Counsel indicates that she has thoroughly reviewed the record and is unable to
advance any grounds of error that warrant reversal. See Anders, 386 U.S. at 744,
87 S. Ct. at 1400; Schulman, 252 S.W.3d at 406–07; Mitchell v. State, 193 S.W.3d
153, 155 (Tex. App.—Houston [1st Dist.] 2006, no pet.).
The brief also reflects that counsel delivered a copy of the brief to appellant
and informed him of his right to examine the record and to file a response. See
Schulman, 252 S.W.3d at 408. More than 30 days have passed, and appellant has
not filed a pro se response. See id. at 409 n.23 (adopting 30-day period for
response). The State waived its opportunity to file an appellee’s brief.
We have independently reviewed the record, and we conclude that no
reversible error exists, that there are no arguable grounds for review, and that the
appeal is frivolous. See id. at 407 n.12 (explaining that appeal is frivolous when it
does not present argument that could “conceivably persuade the court”); Bledsoe v.
State, 178 S.W.3d 824, 826–27 (Tex. Crim. App. 2005) (emphasizing that
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reviewing court—and not counsel—determines, after full examination of
proceedings, whether the appeal is wholly frivolous). Although we may issue an
opinion explaining why the appeal lacks arguable merit, we are not required to do
so. See Garner v. State, 300 S.W.3d 763, 767 (Tex. Crim. App. 2009). An
appellant may challenge a holding that there are no arguable grounds for appeal by
filing a petition for discretionary review in the Court of Criminal Appeals. See
Bledsoe, 178 S.W.3d at 827 & n.6.
We grant counsel’s motion to withdraw1 and affirm the trial court’s
judgment. Attorney Melissa Martin must immediately send the notice required by
Texas Rule of Appellate Procedure 6.5(c) and file a copy of that notice with the
Clerk of this Court. See TEX. R. APP. P. 6.5(c). We dismiss any other pending
motions as moot.
PER CURIAM
Panel consists of Justices Jennings, Higley, and Sharp.
Do not publish. TEX. R. APP. P. 47.2(b).
1
Appointed counsel still has a duty to inform appellant of the result of this appeal
and that he may, on his own, pursue discretionary review in the Texas Court of
Criminal Appeals. See Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim.
App. 2005).
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