Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-15-00333-CR
Mario Ismael GUTIERREZ,
Appellant
v.
The
The STATE of Texas,
Appellee
From the 227th Judicial District Court, Bexar County, Texas
Trial Court No. 2013CR4433
Honorable Philip A. Kazen, Jr., Judge Presiding
Opinion by: Sandee Bryan Marion, Chief Justice
Sitting: Sandee Bryan Marion, Chief Justice
Karen Angelini, Justice
Patricia O. Alvarez, Justice
Delivered and Filed: April 13, 2016
AFFIRMED
Appellant was indicted and charged under two counts: possession of a controlled substance
with intent to deliver and possession of a controlled substance. A jury found appellant guilty on
the second count of possession of a controlled substance. Based upon two prior felony convictions,
appellant’s sentence range was increased to not less than twenty-five years and not more than
ninety-nine years or life in prison. The trial court assessed punishment at twenty-eight years’
confinement. We affirm.
04-15-00333-CR
Appellant’s court-appointed appellate attorney filed a motion to withdraw and a brief in
which he raises no arguable issues and concludes this appeal is without merit. The brief meets the
requirements of Anders v. California, 386 U.S. 738 (1967), High v. State, 573 S.W.2d 807 (Tex.
Crim. App. 1978), and Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969). Counsel
provided proof appellant was given a copy of the brief, the appellate record, and was informed of
his right to file his own brief. Appellant filed a brief on his own behalf in which he alleges: (1) he
received ineffective assistance of counsel at trial; (2) the charging instrument included possession
as an element of both offenses and, therefore, the trial court “abused its discretion by obscuring
the exact charge [and] duplicitly [sic] violated appellant’s constitutional right to fair notice [of] a
specific count the State would rely upon to convict” and “the State abused its discretion by
instructing the jury improperly expanding the scope of both counts”; (3) the trial court failed to
give a Texas Code of Criminal Procedure article 38.23 instruction based upon alleged factual
disputes in the evidence; and (4) his right against double jeopardy was violated because he was
convicted of the second offense (possession) after being acquitted on the first offense (possession
with intent to deliver). The State filed a brief responding to the arguments appellant raised in his
pro se brief.
When an Anders brief and a subsequent pro se brief are filed, we must review the entire
record and determine (1) the appeal is without merit and issue an opinion explaining there is no
reversible error, or (2) there are arguable grounds for appeal and issue an opinion remanding the
cause to the trial court for appointment of new appellate counsel. Garner v. State, 300 S.W.3d
763, 766 (Tex. Crim. App. 2009) (citing Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex. Crim.
App. 2005) (holding court of appeals may address merits of issues raised by pro se only after any
arguable grounds have been briefed by new appointed counsel)).
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04-15-00333-CR
We have carefully reviewed the record, counsel’s brief, and appellant’s pro se brief. We
find no reversible error and agree with counsel the appeal is without merit. See id. We therefore
grant the motion to withdraw filed by appellant’s appointed counsel and affirm the trial court’s
judgment. See id.; Nichols v. State, 954 S.W.2d 83, 86 (Tex. App.—San Antonio 1997, no pet.);
Bruns v. State, 924 S.W.2d 176, 177 n.1 (Tex. App.—San Antonio 1996, no pet.).
No substitute counsel will be appointed. Should appellant wish to seek further review of
this case in 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 after either the day our judgment is rendered
or the day the last timely motion for rehearing or timely motion for en banc reconsideration is
overruled by this court. See TEX. R. APP. P. 68.2(a). Any petition for discretionary review must
be filed with the clerk of the Texas Court of Criminal Appeals. See TEX. R. APP. P. 68.3(a). Any
petition for discretionary review must comply with the requirements of Rule 68.4 of the Texas
Rules of Appellate Procedure. See TEX. R. APP. P. 68.4.
Sandee Bryan Marion, Chief Justice
Do not publish
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