

NO. 07-09-0291-CR
NO. 07-09-0292-CR
 
IN THE COURT OF APPEALS
 
FOR THE
SEVENTH DISTRICT OF TEXAS
 
AT
AMARILLO
 
PANEL C
 
 SEPTEMBER 9, 2010

 
 

 
 
VICTOR JOE CORTEZ, APPELLANT
 
v.
 
THE STATE OF TEXAS, APPELLEE 

 
 

 
 FROM THE 47TH DISTRICT
COURT OF POTTER COUNTY;
 
NOS. 58,786-A, 58,787-A; HONORABLE HAL MINER, JUDGE

 
 

 
Before CAMPBELL and HANCOCK and PIRTLE,
JJ.
 
 
MEMORANDUM OPINION
            Appellant, Victor
Joe Cortez, was convicted by a jury of three counts of aggravated sexual
assault of a child and one count of indecency with a child by sexual contact enhanced
by a prior conviction for the felony offense of indecency with a child.[1]  He was sentenced to confinement for three
consecutive life sentences and one concurrent life sentence.  In presenting his appeal, counsel has filed
an Anders[2]
brief in support of a motion to withdraw. 
We grant counsel's motion and affirm.
            In support of her motion to
withdraw, counsel certifies she has conducted a conscientious examination of
the record and, in her opinion, the record reflects no potentially plausible
basis to support an appeal.  Anders v. California, 386
U.S. 738, 744-45, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); In re Schulman, 252 S.W.3d 403, 406 (Tex.Crim.App. 2008).  Counsel candidly discusses why, under the
controlling authorities, the appeal is frivolous.  See High
v. State, 573 S.W.2d 807, 813 (Tex.Crim.App. 1978).  Counsel has also demonstrated that she has
complied with the requirements of Anders
and In re Schulman by (1) providing a
copy of the brief to Appellant, (2) notifying him of his right to file a pro se response if he desired to do so,
and (3) informing him of his right to file a pro se petition for discretionary review.  In re Schulman, 252 S.W.3d at 408.[3]  No response was filed by the State.  Appellant filed a pro se response to counsel's brief.[4]    
            By his Anders brief, counsel raises three arguable issues:  (1) whether the trial court erred by ordering
three of Appellant's life sentences to run consecutively, (2) whether
Appellant's punishment was properly enhanced to automatic life, despite the
State's use of the same prior conviction to enhance two separate offenses, and
(3) whether the evidence was both legally and factually sufficient to support
Appellant's conviction.  Counsel then candidly
reviews each arguable issue and explains why no reversible error is presented.
            Where we have an Anders brief by counsel and a pro se response, we have two
choices.  We may determine that the
appeal is wholly frivolous and issue an opinion explaining that we have
reviewed the record and find no reversible error; Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex.Crim.App. 2005)
(citing Anders, 386 U.S. at 744), or
we may determine that arguable grounds for appeal exist and remand the cause to
the trial court so that new counsel may be appointed to brief issues.  Id.
(citing Stafford v. State, 813 S.W.2d
503, 510 (Tex.Crim.App. 1991)). However, "[o]nly after the issues have
been briefed by new counsel may a court of appeals address the merits of the
issues."  178
S.W.3d at 827. 
            We have reviewed counsel's arguments
and we have independently examined the entire record to determine whether there
are any non-frivolous issues which might support the appeal.  See
Penson v. Ohio, 488 U.S. 75, 80, 109 S.Ct. 346, 102 S.Ct. 346, 102 L.Ed.2d
300 (1988); In re Schulman, 252
S.W.3d at 409; Stafford v. State, 813
S.W.2d 503, 511 (Tex.Crim.App. 1991).  We
have found no such issues.  See Gainous v. State, 436
S.W.2d 137, 138 (Tex.Crim.App. 1969). 
After reviewing the record, counsel's brief and Appellant's pro se response, we find nothing in the
record that might arguably support the appeal. 
See Bledsoe,
178 S.W.3d at 826-27 (holding that it is constitutional error for an appellate
court to address nonmeritorious arguments raised in a pro se response to an Anders
brief).
            Accordingly, counsel's motion to
withdraw is granted and the trial court's judgments are affirmed.     
 
 
                                                                                                Patrick A. Pirtle
                                                                                                      Justice  
Do not publish.




[1]See Indictments
for Causes Nos. 58,786-A and 58,787-A.  See also Tex. Penal Code Ann. §§ 22.021(a)(2)(B), 21.11(a)(1), 12.42(c)(2) (Vernon Supp. 2009),
respectively.    


[2]Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).


[3]Notwithstanding that Appellant was
informed of his right to file a pro se petition
for discretionary review upon execution of the Trial Court's Certification of Defendant's Right of Appeal, counsel
must comply with Rule 48.4 of the Texas Rules of Appellate Procedure which
provides that counsel shall within five days after this opinion is handed down,
send Appellant a copy of the opinion and judgment together with notification of
his right to file a pro se petition
for discretionary review.  Tex. R. App.
P. 48.4.  See In re Schulman, 252
S.W.2d at 408 n.22 & 411 n.35.


[4]By his pro
se response, Appellant raised two issues. 
He questions (1) whether the trial court should have conducted an
investigation into an alleged conflict of interest between the prosecutor and
defense counsel and (2) whether defense counsel should have filed certain
motions.  Appellant's "third
issue" is in actuality a single-sentence conclusion, i.e., that, but for
counsel's unprofessional conduct and deficient performance, the outcome of his
trial would have been different.  


