
                                          NO. 07-09-00085-CR

                                       IN THE COURT OF APPEALS

                                  FOR THE SEVENTH DISTRICT OF TEXAS

                                             AT AMARILLO

                                               PANEL B

                                            APRIL 22, 2010




                                      OSCAR ESQUIVEL, APPELLANT


                                                  v.


                                     THE STATE OF TEXAS, APPELLEE



                             FROM THE 64TH DISTRICT COURT OF HALE COUNTY;

                       NO. A17766-0809; HONORABLE ROBERT W. KINKAID JR., JUDGE



Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.


                                          MEMORANDUM OPINION


      Appellant, Oscar Esquivel, brings this appeal from his conviction for  the  felony  offense  of
driving while intoxicated.  Appellant's attorney has filed a  brief  in  compliance  with  Anders  v.
California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and In re  Schulman,  252  S.W.3d  403
(Tex.Crim.App. 2008).  Agreeing with appointed counsel’s conclusion the  record  fails  to  show  any
arguably meritorious issue that could support the appeal, we affirm the  trial  court’s  judgment  as
modified.

      Appellant was charged by an indictment alleging he operated a motor vehicle in a  public  place
while  intoxicated.  The  indictment  contained  four  additional  paragraphs,  each  alleging  prior
convictions for driving while intoxicated.  Appellant plead not guilty and was tried  before  a  jury
which found him guilty as charged in the indictment.  He plead true to one enhancement paragraph  and
punishment was assessed in conformity with the jury’s verdict at twenty years of confinement  in  the
Institutional Division of the Texas Department of Criminal Justice.[1]  Appellant’s  appointed  trial
counsel timely perfected appeal.

      At trial, the State’s evidence showed a Plainview officer observed appellant on August 6,  2008
at approximately two in the morning.  The officer testified he saw appellant, driving a gray Ford  F-
150 pickup, swerve and cross all three lanes of traffic,  without  signalling  a  lane  change.   The
officer testified these actions were violations of the Texas Transportation  Code.[2]    The  officer
initiated a stop.  Appellant stopped in the middle of the street.   When  the  officer  made  contact
with appellant, he noticed the “overwhelming” smell of alcohol coming  from  appellant  and  observed
appellant had glassy eyes and slurred speech.  Appellant lost his balance and “fell into the side  of
the vehicle, using the vehicle to steady himself” as he exited his  pickup.   The  officer  testified
appellant performed poorly on each of the standardized field tests appellant attempted  and  was,  in
the officer’s opinion, intoxicated. He opined appellant had lost the normal use of his  physical  and
mental faculties due to the introduction of alcohol into his  body.   Appellant  refused  to  perform
some of the field tests and refused to provide a breath test. The  patrol  car  video  recording  was
also introduced at trial and the jury viewed it in redacted form.

      A second officer testified that in the intoxilyzer room at the police station, appellant swayed
back and forth, his speech was “pretty bad where he couldn’t talk right,” he had red,  bloodshot  and
glazed eyes, and smelled very strongly of alcohol.  A recording of appellant in the intoxilyzer  room
was introduced and viewed at trial.

      Appellant did not testify but presented the testimony of  one  witness  during  the  punishment
phase of his trial.

      Appellant's appointed appellate counsel has filed a motion to withdraw and a brief  in  support
pursuant to Anders in which he certifies that he has diligently  reviewed  the  record  and,  in  his
professional opinion, under the  controlling  authorities  and  facts  of  this  case,  there  is  no
reversible error or legitimate grounds on which a non-frivolous appeal arguably  can  be  predicated.
The brief discusses the  procedural  history  of  the  case  and  appellant’s  jury  trial.   Counsel
discusses the applicable law and sets forth the reasons he concludes the record presents no  arguably
meritorious appellate issues.  Counsel has certified that a copy of the Anders brief  and  motion  to
withdraw have been served on appellant, and that counsel  has  advised  appellant  of  his  right  to
review the record and file a pro se response. Johnson v. State, 885 S.W.2d 641,  645  (Tex.App.--Waco
1994, pet. ref'd).  By letter, this Court also notified appellant of  his  opportunity  to  submit  a
response to the Anders brief and motion to withdraw filed by his counsel.  Appellant has not filed  a
response.

      In conformity with the standards set out by the United States Supreme Court, we will  not  rule
on the motion to withdraw until we have independently examined the record.   Nichols  v.  State,  954
S.W.2d 83, 86 (Tex.App.–San Antonio 1997, no pet.).  If this Court determines the appeal  has  merit,
we will remand it to the trial court for appointment of new counsel.   See  Stafford  v.  State,  813
S.W.2d 503, 511 (Tex.Crim.App.1991).

      In his brief, counsel notes that he has considered whether the evidence presented at trial  was
legally and factually sufficient to support appellant’s conviction  for  driving  while  intoxicated.
As alleged in the indictment, the State was required to prove appellant drove a motor  vehicle  in  a
public place while intoxicated and that he had two prior convictions for driving  while  intoxicated.
Tex. Penal Code Ann. §§ 49.04, 49.09.  As relevant here, a person is intoxicated if he does not  have
the normal use of his mental or physical faculties by reason of the introduction of alcohol  or  some
other substance into the body. See Tex. Penal Code Ann. § 49.01(2) (Vernon 2009).  After  a  complete
review of the record, we agree with appellate counsel that the grounds  identified  do  not  arguably
support an appeal.  See Jackson v. Virginia, 443 U.S.  307,  319,  99  S.Ct.  2781,  61  L.Ed.2d  560
(1979);  McKinney v. State, 207 S.W.3d 366, 374 (Tex.Crim.App.  2006)  (setting  forth  standard  for
review of legal sufficiency of the evidence); Watson v. State, 204 S.W.3d 404, 414-15  (Tex.Crim.App.
2006); Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App. 2006); Johnson v. State, 23 S.W.3d 1, 6-
7  (Tex.Crim.App.  2000)  (factual  sufficiency).   See  also  Lopez  v.  State,   279   S.W.3d   727
(Tex.App.—Amarillo 2007, no  pet.)  (discussing  legal  and  factual  sufficiency  in  driving  while
intoxicated case).

      Counsel also discusses the trial court’s  denial  of  appellant’s  “Motion  To  Suppress  Test,
Videotape, Statements” and concludes the trial court did not err or abuse its discretion  in  denying
the motion.  Counsel notes the trial court granted the motion in part, suppressing  portions  of  the
video recordings, and the redacted videos were  admitted  without  objection.   After  reviewing  the
entire record, we agree with counsel’s conclusion that there is no arguably  meritorious  issue  that
may be raised on this point.  See Balentine v.  State,  71  S.W.3d  763,  768  (Tex.Crim.App.  2002);
Villarreal, 935 S.W.2d 134, 138 (Tex.Crim.App. 1996) (each setting forth standard of review of  trial
court’s motion to suppress).

      Our review convinces us that appellate counsel conducted a complete review of the  record.   We
have also made an independent examination of the entire record to determine  whether  there  are  any
arguable grounds which might support the appeal.   We  agree  it  presents  no  arguably  meritorious
grounds for review.  Accordingly, we grant counsel's motion to withdraw.1

      We note the trial court’s judgment contains a special order  that  appellant  repay  attorney’s
fees in the amount of $1697.50 to Hale County.  The record contains no determination by the court  of
appellant’s ability to pay such fees.  Tex. Code  Crim.  Proc.  Ann.  art.  26.05(g)  (Vernon  2009).
Accordingly, we modify the trial court’s judgment by deleting  the  language  ordering  appellant  to
repay attorney’s fees in the amount of $1697.50. See Mayer v. State, 274 S.W.3d 898, 901  (Tex.App.--
Amarillo  2008,  pet.  ref'd);  Sepeda  v.  State,  No.  07-08-0366-CR,  2009  Tex.App.  LEXIS   9654
(Tex.App.—Amarillo Dec. 18, 2009, pet. ref’d)  (mem.  op.,  not  designated  for  publication)  (also
modifying judgments to delete such orders).  As modified, we affirm the judgment of the trial court.




                 James T. Campbell
                                                   Justice



Do not publish.






-----------------------
      [1]   See Tex. Penal Code Ann. § 49.04 (Vernon 2009).  Appellant was charged with  the  offense
of driving while intoxicated, third or more, enhancing the offense from a misdemeanor  to  a  felony.
Tex. Penal Code Ann. § 49.09(b) (Vernon 2007).  The punishment for the  enhanced  offense  of  felony
DWI was then enhanced under section 12.42 of the Penal Code, increasing the range  of  punishment  to
imprisonment for any term of not more than 20 years or less than 2 years and a  fine  not  to  exceed
$10,000.  See Tex. Penal Code Ann. § 12.42 (Vernon 2007);  Tex.  Penal  Code  Ann.  §  12.33  (Vernon
2009).


      [2]   See Tex. Transp. Code Ann. § 546.060 (Vernon 1999) (fail to maintain  a  single  lane  of
traffic); Tex. Transp. Code Ann. § 545.104 (Vernon 1999) (fail to signal a lane change).
      1Counsel shall, within five days after the opinion is handed down, send his client  a  copy  of
the opinion and judgment, along with notification of the defendant’s right to file a pro se  petition
for discretionary review.  See Tex. R. App. P. 48.4.



