                            NUMBER 13-08-00697-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG


SAMUEL G. MARTINEZ,                                                         Appellant,

                                           v.

THE STATE OF TEXAS,                                                          Appellee.


                    On appeal from the 28th District Court
                         of Nueces County, Texas.


                          MEMORANDUM OPINION

        Before Chief Justice Valdez and Justices Yañez and Vela
             Memorandum Opinion by Chief Justice Valdez

      Appellant, Samuel G. Martinez, was charged by indictment with one count of

aggravated robbery, a first-degree felony. See TEX . PENAL CODE ANN . § 29.03(a)-(b)

(Vernon 2003). After a bench trial, Martinez was convicted of the lesser-included offense

of robbery, a second-degree felony. See id. § 29.02 (Vernon 2003). The trial court

assessed punishment at ten years’ incarceration in the Institutional Division of the Texas

Department of Criminal Justice with no fine.
        Martinez’s appellate counsel, concluding that “the appeal in this cause is frivolous

and without merit,” filed an Anders brief, in which he reviewed the merits, or lack thereof,

of the appeal. We affirm the judgment as modified.1

                                             I. ANDERS BRIEF

        Pursuant to Anders v. California, 386 U.S. 738, 744 (1967), Martinez’s

court-appointed appellate counsel has filed a brief with this Court, stating that his review

of the record yielded no grounds or error upon which an appeal can be predicated.

Although counsel’s brief does not advance any arguable grounds of error, it does present

a professional evaluation of the record demonstrating why there are no arguable grounds

to be advanced 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).

        In compliance with High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel Op.]

1978), Martinez'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:

(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 Martinez, and (3) informed



        1
           The trial court’s judgm ent indicates that Martinez was convicted of robbery, yet the judgm ent
m istakenly refers to section 29.03 of the penal code— the aggravated robbery statute— instead of section
29.02— the robbery statute. See T EX . P EN AL C OD E A N N . §§ 29.02, 29.03 (Vernon 2003). Because we have
the necessary data and evidence for reform ation, we m odify the trial court’s judgm ent to reflect the correct
statute of the offense for which Martinez was convicted— section 29.02 of the penal code. See id. § 29.02;
see also T EX . R. A PP . P. 43.2(b); Bigley v. State, 865 S.W .2d 26, 27 (Tex. Crim . App. 1993).
                                                      2
Martinez of his right to review the record and to file a pro se response.2 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. On July 8, 2009, Martinez filed his pro se response with this Court. 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 Martinez’s pro se

response and have found nothing that would arguably support an appeal. See Bledsoe

v. State, 178 S.W.3d 824, 826-28 (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.

Accordingly, we modify the judgment to recite that Martinez was convicted of the lesser-

included offense of robbery under section 29.02 of the penal code, see TEX . PENAL CODE

ANN . § 29.02, and we affirm the judgment as modified.

                                       III. MOTION TO WITHDRAW

        In accordance with Anders, Martinez’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.) (“If an attorney believes the appeal is frivolous, he must withdraw from


        2
           The Texas Court of Crim inal Appeals has held that “the pro se response need not com ply 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 m eritorious issues.” In re Schulman, 252 S.W .3d 403, 409 n.23 (Tex. Crim . App. 2008) (quoting
W ilson v. State, 955 S.W .2d 693, 696-97 (Tex. App.–W aco 1997, no pet.)).
                                                     3
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 Martinez and advise him of his right to file a petition for

discretionary review.3 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
25th day of February, 2010.




         3
            No substitute counsel will be appointed. Should Martinez wish to seek further review of this case
by the Texas Court of Crim inal Appeals, he m ust 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 m ust be filed within
thirty days from the date of either this opinion or the last tim ely m otion for rehearing that was overruled by this
Court. See T EX . R. A PP . P. 68.2. Any petition for discretionary review m ust be filed with this Court, after which
it will be forwarded to the Texas Court of Crim inal Appeals. See T EX . R. A PP . P. 68.3; 68.7. Any petition for
discretionary review should com ply with the requirem ents of Rule 68.4 of the Texas Rules of Appellate
Procedure. See T EX . R. A PP . P. 68.4.



                                                          4
