


 
IN THE
TENTH COURT OF APPEALS










 

No. 10-08-00156-CR
 
Juan Carrera,
                                                                                    Appellant
 v.
 
The State of Texas,
                                                                                    Appellee
 
 

From the 278th District Court
Walker County, Texas
Trial Court No. 19509C
 

MEMORANDUM  Opinion





 
            Juan M. Carrera pleaded guilty to the
offense of aggravated sexual assault of a child, a first-degree felony.  Tex. Pen. Code Ann. § 22.021 (Vernon
2003).  In accordance with a plea bargain agreement, the trial court deferred a
finding of guilt and placed Carrera on eight years' deferred adjudication
community supervision.
A motion to adjudicate guilt was filed by the
State.  At the hearing, the trial court found the allegations to be true, and
adjudicated Carrera guilty of the offense of aggravated sexual assault of a
child.  After a punishment hearing, the trial court sentenced Carrera to
confinement in the Texas Department of Criminal Justice-Institutional Division
for five (5) years.  We affirm.
Carrera's appellate counsel filed an Anders
brief.  See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967).
Counsel informed Carrera of the right to file a
brief, but Carrera has not filed one.  Because of Carrera's inaction, the State
was not obligated to file a response.  See Wilson v. State, 955
S.W.2d 693, 697 (Tex. App.—Waco 1997, order).  Counsel concludes that the
appeal is frivolous.
Counsel's brief evidences a professional
evaluation of the record for error, and we conclude that counsel performed the
duties required of appointed counsel.  See Anders, 386 U.S. at 744; High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. 1978); see also
In re Schulman, 252 S.W.3d 403, 407 (Tex. Crim. App. 2008).
In reviewing an Anders appeal, we must,
"after a full examination of all the proceedings, . . . decide whether the
case is wholly frivolous."  Anders at 744; accord Stafford v. State, 813 S.W.2d 503, 509-11 (Tex. Crim. App. 1991); Coronado
v. State, 996 S.W.2d 283, 285 (Tex. App.—Waco 1999, order) (per curiam), disp.
on merits, 25 S.W.3d 806 (Tex. App.—Waco 2000, pet. ref'd).  An appeal is
"wholly frivolous" or "without merit" when it "lacks
any basis in law or fact."  McCoy v. Court of Appeals , 486 U.S.
429, 439 n.10, 108 S. Ct. 1895, 100 L. Ed. 2d 440 (1988).  Arguments are
frivolous when they "cannot conceivably persuade the court."  McCoy,
486 U.S. at 436.  An appeal is not wholly frivolous when it is based on
"arguable grounds."  Stafford, 813 S.W.2d at 511.
After a review of the entire record in this
appeal, we determine the appeal to be wholly frivolous.  See Bledsoe
v. State, 178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005).  Accordingly, we
affirm the trial court's judgment.
Counsel's request that he be allowed to withdraw
from representation of Carrera is granted.  Counsel has already notified
Carrera of his right to file a pro se petition for discretionary review
as part of the "educational burdens" that were satisfied when filing
the Anders brief.  Further, the Court of Criminal Appeals has validated
the method of notification used by counsel.  See In re Schulman, 252
S.W.3d 403, 412 n.34 (Tex. Crim. App. 2008); Meza v. State, 206 S.W.3d
684, 689 n.23 (Tex. Crim. App. 2006); Ex parte Owens, 206 S.W.3d 670,
674 n.28 (Tex. Crim. App. 2006).  Additionally, counsel must send Carrera a
copy of our decision, notify Carrera of his right to file a pro se
petition for discretionary review, and send this Court a letter certifying
counsel’s compliance with Texas Rule of Appellate Procedure 48.4.  Tex. R. App. P. 48.4; see In
re Schulman, 252 S.W.3d 403, 409 n. 22 (Tex. Crim. App. 2008). 
 
                                                                        TOM
GRAY
                                                                        Chief
Justice
 
Before Chief Justice
Gray,
            Justice
Reyna, and
            Justice Davis
Affirmed
Opinion delivered and
filed July 8, 2009
Do not publish
[CR25]


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Concurring opinion delivered and filed April 3, 2003
Publish
