

Opinion issued October
6, 2011
 
 


 
 
 
 
 
 
In The
Court of Appeals
For The
First District of
Texas
 

 

NO. 01-10-00459-CR
____________
 




FERNANDO RODAS, Appellant
 
V.
 
THE STATE OF TEXAS, Appellee
 

 
On Appeal from the 184th District Court
Harris County, Texas
Trial Court Cause No. 1124515
 

 

MEMORANDUM OPINION




Appellant, Fernando Rodas, pleaded guilty to robbery.  See Tex. Penal Code Ann. § 29.02 (Vernon 2011).  The trial court assessed punishment at four
years’ deferred adjudication community supervision and a $500 fine.  Subsequently, the State moved for an
adjudication of appellant’s guilt, on the grounds that appellant had violated
the conditions of his community supervision. 
At a hearing on the motion, appellant pleaded not true to the allegation
in the State’s motion to adjudicate guilt. 
The trial court found the allegations true, adjudged appellant guilty of
the original charge, and assessed punishment at eight years’ confinement.  The trial court certified that this is not a
plea bargain case and that appellant has the right of appeal.  Appellant timely filed a notice of appeal.
Appellant’s counsel on appeal has
filed a motion to withdraw, along with an Anders
brief stating that the record presents no reversible error and therefore the
appeal is without merit and is frivolous.  See
Anders v. California, 386 U.S. 738, 87 S. Ct. 1396 (1967).  We grant counsel’s motion to withdraw and affirm
the trial court’s judgment.
An attorney has an ethical obligation
to refuse to prosecute a frivolous appeal.  In re Schulman, 252 S.W.3d 403, 407 (Tex. Crim. App. 2008).  If an appointed attorney finds a case to be
wholly frivolous, his obligation to his client is to seek leave to withdraw.  Id.  Counsel’s obligation to the appellate court
is to assure it, through an Anders
brief, that, after a complete review of the record, the request to withdraw is well-founded.
Id.
We may not grant the motion to
withdraw until:
(1)     the
attorney has sent a copy of his Anders
brief to his client along with a letter explaining that the defendant has the
right to file a pro se brief within 30 days, and he has ensured that his client
has, at some point, been informed of his right to file a pro se PDR; 
(2)     the attorney has informed us that he has performed the above
duties; 
(3)     the defendant has had time in which to file a pro se
response; and
(4)     we have reviewed the record, the Anders brief, and any pro se brief.
 
See id. at 408–09.  If we agree that the appeal is wholly
frivolous, we will grant the attorney’s motion to withdraw and affirm the trial
court’s judgment. See Garner v. State,
300 S.W.3d 763, 766 (Tex. Crim. App. 2009).  If
we conclude that arguable grounds for appeal exist, we will grant the motion to
withdraw, abate the case, and remand it to the trial court to appoint new
counsel to file a brief on the merits.  See Bledsoe v. State, 178
S.W.3d 824, 826–27 (Tex. Crim. App. 2005).  
Here, counsel’s brief reflects that
he delivered a copy of the brief to appellant and informed him of his right to examine
the appellate record and to file a response. 
See Schulman, 252 S.W.3d at 408.  More
than 30 days have passed, and appellant has not filed a pro se brief.  See id.
at 409 n.23 (adopting 30-day period for response).  
          Counsel’s
brief meets the Anders requirements
in that it presents a professional evaluation of the record. See Anders, 386 U.S. at 744, 87 S. Ct.
at 1400; see also High v. State, 573
S.W.2d 807, 812 (Tex. Crim. App. 1978).  Counsel
supplies us with references to the record and provides us with citation to
legal authorities.  Counsel indicates
that he has thoroughly reviewed the record and that he is unable to advance any
grounds of error that warrant reversal.  See Anders, 386 U.S. at 744, 87 S. Ct.
at 1400; Mitchell v. State, 193
S.W.3d 153, 154 (Tex. App.—Houston [1st Dist.] 2006, no pet.).  
We have independently reviewed the entire
record, and we conclude that no reversible error exists in the record, that
there are no arguable grounds for review, and that therefore the appeal is frivolous.
See Anders, 386 U.S. at 744, 87 S. Ct.
at 1400; Garner v. State, 300 S.W.3d
763, 767 (Tex. Crim. App. 2009) (explaining that frivolity is determined by
considering whether there are “arguable grounds” for review); Bledsoe, 178 S.W.3d at 826–27 (emphasizing
that reviewing court—and not counsel—determines, after full examination of
proceedings, whether the appeal is wholly frivolous); Mitchell, 193 S.W.3d at 155.  An appellant may challenge a holding that
there are no arguable grounds for appeal by filing a petition for discretionary
review in the Court of Criminal Appeals. See
Bledsoe, 178 S.W.3d 827 & n.6.
We grant counsel’s motion to withdraw[1]
and dismiss the appeal. Attorney Joseph W. Verela must
immediately send the notice required by Texas Rule of Appellate Procedure
6.5(c) and file a copy of that notice with the Clerk of this Court.  See
Tex. R. App. P. 6.5(c).
PER CURIAM
 
Panel consists of Chief Justice Radack and Justices Bland
and Huddle.
 
Do not publish. 
Tex. R. App. P.
47.2(b).
 




[1]
              Appointed
counsel still has a duty to inform appellant of the result of this appeal and
that he may, on his own, pursue discretionary review in the Texas Court of
Criminal Appeals. See Bledsoe v. State,
178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005).


