                           NUMBER 13-12-00098-CR

                              COURT OF APPEALS

                    THIRTEENTH DISTRICT OF TEXAS

                       CORPUS CHRISTI - EDINBURG


JAMES GONZALEZ A/K/A JAMES A. GONZALES,                                       Appellant,

                                             v.

THE STATE OF TEXAS,                                                           Appellee.


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


                           MEMORANDUM OPINION

                Before Justices Rodriguez, Garza, and Perkes
                 Memorandum Opinion by Justice Rodriguez
       Appellant James Gonzalez a/k/a James A. Gonzales appeals from his conviction

for driving while intoxicated, a third-degree felony as a result of appellant's two prior DWI

convictions. See TEX. PENAL CODE ANN. §§ 49.04(a), 49.09(b)(2) (West Supp. 2011).

The indictment alleged two additional enhancements for his prior convictions for burglary
and murder, which, if true, subjected appellant to a minimum of twenty-five years'

incarceration as a habitual felony offender. See id. § 12.42(d) (West Supp. 2011).

Appellant entered an open plea of guilty to the charged offense and pleaded true to the

four enhancement paragraphs. The trial court sentenced appellant to twenty-five years'

incarceration and assessed court costs.

       Concluding that the appeal in this case would be frivolous, counsel filed an Anders

brief in which he reviewed the merits, or lack thereof, of the appeal. We affirm.

                       I. COMPLIANCE WITH ANDERS V. CALIFORNIA

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

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

diligently reviewed the record and the applicable law and concluding that, in his

professional opinion, "there are no grounds of error upon which an appeal can be

predicated" and that "the appeal is wholly without merit." See In re Schulman, 252

S.W.3d 403, 407 n.9 (Tex. Crim. App. 2008) (orig. proceeding) ("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)

(en banc).

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

Op.] 1978), appellant's counsel has, thus, carefully discussed why, under controlling

authority, there are no errors in the trial court's judgment. Counsel has informed this


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Court that he has: (1) examined the record and found no arguable grounds to advance

on appeal, (2) served his brief and motion to withdraw on appellant, and (3) informed

appellant of his right to review the record and to file a pro se response. 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.

        Appellant filed a pro se response on December 21, 2012 and a further reply to the

State's brief on April 4, 2013. When appellate counsel files an Anders brief and the

appellant independently files a pro se brief, the court of appeals has two choices: "[i]t

may determine that the appeal is wholly frivolous and issue an opinion explaining that it

has reviewed the record and finds no reversible error. Or, it 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 the issues." Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim.

App. 2005). We are not required to review the merits of each claim raised in an Anders

brief or a pro se response—rather, we must merely determine if there are any arguable

grounds for appeal. Id. at 827. If we so determine, we must remand for appointment of

new counsel.     Id.   Reviewing the merits raised in a pro se brief would deprive an

appellant of meaningful assistance of counsel. Id. Accordingly, we will independently

review the record to determine if there are any arguable grounds for appeal.

                                 II. INDEPENDENT REVIEW

        The United States Supreme Court has advised appellate courts that upon

receiving a "frivolous appeal" brief, they must conduct "a full examination of all the

proceedings to decide whether the case is wholly frivolous." Penson v. Ohio, 488 U.S.


                                            3
75, 80 (1988). We have reviewed the entire record, counsel's brief, appellant's pro se

response, the State's brief, and appellant's reply to the State's brief, and we have found

nothing that would arguably support an appeal. See Bledsoe, 178 S.W.3d at 826–28

("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 affirm the judgment of the trial court.

                                       III. MOTION TO WITHDRAW

        In accordance with Anders, appellant's attorney has asked this Court for

permission to withdraw as counsel for appellant. 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.) (noting that "[i]f an attorney believes the appeal is

frivolous, he must withdraw from 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, carried with the case on November 6, 2012. Within

five days of the date of this Court’s opinion, counsel is ordered to send a copy of the

opinion and judgment to appellant and to advise him of his right to file a petition for

discretionary review.1 See TEX. R. APP. P. 48.4; see also In re Schulman, 252 S.W.3d at


        1
           No substitute counsel will be appointed. Should appellant wish to seek further review of this
case by the Texas Court of Criminal Appeals, he must 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
must be filed within thirty days from the date of either this opinion or the last timely motion for rehearing or
timely motion for en banc reconsideration that was overruled by this Court. See TEX. R. APP. P. 68.2. Any
petition for discretionary review must be filed with the clerk of the Court of Criminal Appeals. See TEX. R.
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412 n.35; Ex parte Owens, 206 S.W.3d 670, 673 (Tex. Crim. App. 2006).



                                                                        NELDA V. RODRIGUEZ
                                                                        Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
16th day of May, 2013.




APP. P. 68.3. Any petition for discretionary review should comply with the requirements of Texas Rule of
Appellate Procedure 68.4. See TEX. R. APP. P. 68.4.
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