

 
 











 
 
 
 
                                    NUMBER
13-00-435-CR
                                 COURT OF
APPEALS
                     THIRTEENTH DISTRICT OF
TEXAS
                         CORPUS CHRISTI B EDINBURG
 
JUAN ANTONIO
PEREZ,                                                                  Appellant,
                                                             v.
THE STATE OF TEXAS,                                                                    Appellee.
 
 
                    On appeal from the 103rd District
Court
                                       of
Cameron County, Texas.
 
 
 
                                M
E M O R A N D U M   O P I N I O N
 
     Before Chief Justice
Valdez and Justices Castillo and Garza
 
      Opinion by Chief
Justice Valdez
 
 
 




Appellant, Juan Antonio Perez, originally filed his
appeal with this Court, alleging that the trial court erred and abused its
discretion by denying appellant a copy of the reporter=s record of the cause without cost so that appellant
could pursue his appeal.  By order dated
April 10, 2003, this Court found that the trial court had abused its discretion
and, accordingly, ordered that the reporter=s record be prepared and made available to counsel
for appellant.  We also ordered appellant=s counsel to file a supplemental brief in order to
raise any colorable issues on appeal.
After appellant=s counsel failed to file the supplemental brief,
despite being granted numerous extensions, we abated the appeal and remanded the cause to the trial court for
further proceedings.  We requested that
the trial court give notice to the parties and conduct a hearing to determine
(1) whether appellant desired to prosecute the appeal, and (2) whether
appellant had been denied the effective assistance of counsel due to appellate
counsel's failure to timely file an appellate brief.  See Tex.
R. App. P. 38.8(b)(2), (4).
The trial court gave notice and conducted the
hearing as ordered, then filed its ARecommendations to the Appellate Court@ with this Court. 
In its ARecommendations,@ the
court noted that it concluded, after the hearing, that appellant had not been
denied the effective assistance of counsel due to appellant=s counsel=s failure to timely file an appellate brief because
appellant Agave mixed signals to his attorney regarding his
wish to continue the appeal.@  The trial
court then directed appellant to respond by letter to the court by July 26,
2005, stating whether he desired to prosecute the appeal.  The trial court allowed an extra week for
appellant to respond, and after receiving no response by August 3, 2005,
concluded that appellant no longer wished to prosecute the appeal and
recommended to this Court that the appeal be dismissed.  




After the trial court=s
recommendations had been received by this Court, appellant=s counsel filed the earlier-requested supplemental
brief on August 15, 2005.  Counsel failed
to request permission from this Court to file his out-of-time supplemental
brief, see Tex. R. App. P. 38.6;
however, in the interests of justice, we have reviewed the supplemental
brief.  In this brief, counsel stated
that he had diligently searched the record and it was his professional
evaluation that no reversible error is reflected in the record and,
furthermore, any appeal would be without merit and frivolous.  See Anders v. California, 386 U.S.
738, 744 (1967) (establishing requirements for Afrivolous
appeals@ briefs).  In
conjunction with the filing of this brief, counsel  also informed appellant that he had the right
to file a pro se appellate brief and to review the record.  See McMahon v. State, 529 S.W.2d 771,
772 (Tex. Crim. App. 1975); Johnson v. State, 885 S.W.2d 641, 646 (Tex.
App.BWaco 1994, pet. ref'd) (per curiam).  Over thirty days have passed since appellant
was informed of his rights, and no pro se brief has been filed by appellant. 
Because counsel=s Anders brief was filed out of time, we are
not obligated to consider it.  Out of an
abundance of caution, however, we have reviewed the record in accordance with
our normal standards in Anders cases, and we can find no colorable
issues for appeal.  See Penson v. Ohio,
488 U.S. 75, 80 (1988).  Accordingly, we
adopt the recommendation of the trial court regarding dismissal of this
appeal.  See Tex. R. App. P. 43.2(f).  This appeal is dismissed.
                                           
Rogelio Valdez,
Chief Justice
Do
not publish.
Tex. R. App. P.
47.2(b).
 
Memorandum Opinion delivered and filed
this 1st day of December, 2005.

