                            NUMBER 13-17-00199-CR

                              COURT OF APPEALS

                      THIRTEENTH DISTRICT OF TEXAS

                        CORPUS CHRISTI - EDINBURG


DAVID ESTRADA, A/K/A
DAVID ESTRADA JR.,                                                        Appellant,

                                          v.

THE STATE OF TEXAS,                                                        Appellee.


                   On appeal from the 117th District Court
                         of Nueces County, Texas.


                       MEMORANDUM OPINION
           Before Justices Rodriguez, Benavides, and Longoria
               Memorandum Opinion by Justice Benavides

      This is an appeal from a judgment adjudicating guilt and revoking an order of

community supervision. In 2014, a Nueces County grand jury indicted then 20-year-old

appellant David Estrada a/k/a David Estrada, Jr. with aggravated robbery, a first-degree

felony, related to allegations that Estrada robbed a Stripes convenience store in Corpus
Christi of $40 and a pack of chewing gum by threatening the store clerk with a hatchet.

See TEX. PENAL CODE ANN. § 29.03 (West, Westlaw through 2017 1st C.S.). Estrada

subsequently pleaded guilty as charged. The trial court received Estrada’s plea of guilty,

deferred adjudication, and placed him on community supervision for a term of eight years.

Additionally, the trial court imposed several conditions and terms to Estrada’s probation.

        In February 2016, the State filed its first motion to revoke Estrada’s community

supervision. In its motion, the State alleged that Estrada committed numerous violations

of his community supervision, including: failure to report as required, failure to pay various

fees, and failure to attend a treatment alternative to incarceration program (TAIP). After

considering the State’s motion, the trial court continued Estrada’s community supervision

and ordered that he be placed in an intermediate sanction facility.

        Ten months later, the State filed its second motion to revoke Estrada’s community

supervision. In its motion, the State alleged that Estrada violated various terms and

conditions of his community supervision, including inter alia: testing positive for marijuana;

admitting to smoking marijuana to his community supervision officer; and failing to

complete his required community supervision hours. Two months later, the State filed an

amended motion to revoke, alleging that in addition to the violations alleged in the second

motion to revoke, Estrada had also committed the offenses of aggravated sexual assault,

see id. § 22.021 (West, Westlaw through 2017 1st C.S.); and aggravated kidnapping. See

id. § 20.04 (West, Westlaw through 2017 1st C.S.).1



        1  The State alleged that Estrada committed a third offense, engaging in organized criminal activity.
See TEX. PENAL CODE ANN. § 71.02 (West, Westlaw through 2017 1st C.S.). However, the State abandoned
this allegation at the time of Estrada’s revocation hearing.




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       The trial court held a hearing on the State’s amended motion to revoke, where

Estrada pleaded “not true” to all of the State’s allegations. At the hearing, the State

received evidence from Estrada’s community supervision officer, who testified that Estrada

committed all of the violations alleged, including testing positive for marijuana use and

admitting to marijuana use. Furthermore, the trial court received evidence from Brandon

Earhart, an acquaintance of Estrada, who testified about the allegations that Estrada had

committed the offenses of aggravated sexual assault and aggravated kidnapping. Earhart

testified that Estrada and others bound him and his girlfriend at a home in Corpus Christi,

after accusing Earhart and his girlfriend of stealing their “dope.” Earhart further testified

that later during the ordeal, he was threatened with a pistol to watch Estrada force

Earhart’s girlfriend to perform oral sex on Estrada. Earhart stated that he eventually

escaped captivity and later called police to report the incident. At the hearing, Earhart

positively identified Estrada as well as photographs admitting into evidence of Estrada’s

home, where the incident took place. At the close of the revocation hearing, the State

requested that the trial court revoke Estrada’s community supervision and sentence him

to sixty years’ imprisonment. Estrada’s defense attorney argued mitigating circumstances

and prayed for a ten-year sentence. The trial court found all of the State’s allegations true,

and sentenced Estrada to thirty-five years’ imprisonment with the Texas Department of

Criminal Justice—Institutional Division. This appeal followed.

       Estrada’s court-appointed appellate counsel has filed an Anders brief. See Anders

v. California, 386 U.S. 738, 744 (1967). We affirm.




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                                        I.      ANDERS BRIEF

        Pursuant to Anders v. California, Estrada’s court-appointed appellate counsel has

filed a brief and a motion to withdraw with this Court, stating that his review of the record

yielded no grounds of error upon which an appeal can be predicated. See id. Counsel’s

brief meets the requirements of Anders as it presents a professional evaluation

demonstrating why there are no arguable grounds to advance 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 and Kelly v. State, Estrada’s counsel carefully

discussed why, under controlling authority, there is no reversible error in the trial court’s

judgment.     See High, 573 S.W.2d at 813; Kelly, 436 S.W.3d at 319–22.                       Estrada’s

appellate counsel also notified this Court that he: (1) notified Estrada that he has filed an

Anders brief and a motion to withdraw; (2) provided Estrada with copies of both pleadings;

(3) informed Estrada of his rights to file a pro se response, review the record preparatory

to filing that response,2 and seek discretionary review if we concluded that the appeal is

frivolous; (4) provided Estrada with a pro se motion for access to the appellate record; and


         2 The Texas Court of Criminal Appeals has held that “the pro se response need not comply 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 meritorious issues.” In re Schulman, 252 S.W.3d at 409 n.23 (quoting Wilson v. State, 955
S.W.2d 693, 696–97 (Tex. App.—Waco 1997, no pet.).




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(5) informed Estrada that the pro se response, if any, should identify for the Court those

issues which he believes the Court should consider in deciding whether the case presents

any meritorious issues. See Anders, 386 U.S. at 744; Kelly, 436 S.W.3d at 319–20;

Stafford, 813 S.W.2d at 510; see also In re Schulman, 252 S.W.3d at 409 n.23.

       On June 21, 2017, pursuant to a pro se motion filed by Estrada, this Court ordered

that the trial court ensure that Estrada is given the opportunity to fully examine the

appellate record. The trial court and the trial court clerk later provided this Court with

written documentation of its compliance with our order.

       On September 29, 2017, Estrada filed a one-page, handwritten pro se response

with this Court. In the response, Estrada argues that his sentence of thirty-five years’

imprisonment was excessive in light of the new sentences he received in his subsequent

convictions of aggravated kidnapping and aggravated assault.           Specifically, Estrada

requests that his sentence be reduced to between eight and twenty years.

                                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). A court of appeals has two options when an Anders brief and a subsequent

pro se response are filed. After reviewing the entire record, it may: (1) determine that the

appeal is wholly frivolous and issue an opinion explaining that it finds no reversible error;

or (2) determine that there are arguable grounds for appeal and remand the case to the

trial court for appointment of new appellate counsel. Bledsoe v. State, 178 S.W.3d 824,




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826–27 (Tex. Crim. App. 2005). If the court finds arguable grounds for appeal, it may not

review those grounds until after new counsel has briefed those issues on appeal. Id.

       We have reviewed the entire record, counsel’s brief, and Estrada’s pro se response.

We have found nothing that would arguably support an appeal. See id. at 827–28 (“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. There is no reversible error in the record. Accordingly, the judgment

of the trial court is affirmed.

                                  III.   MOTION TO WITHDRAW

       In accordance with Anders, Estrada’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 Jeffrey v. State, 903 S.W.2d 776, 779–80 (Tex.

App.—Dallas 1995, no pet.) (“[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.

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

and this Court’s judgment to Estrada and advise him of his right to file a petition for




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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).

                                                IV.     CONCLUSION

        We affirm the judgment of the trial court.


                                                                            GINA M. BENAVIDES,
                                                                            Justice



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

Delivered and filed the
16th day of November, 2017.




        3   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. APP. P. 68.3,
and should comply with the requirements of the Texas Rule of Appellate Procedure 68.4. See TEX. R. APP.
P. 68.4.




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