                                                                                ACCEPTED
                                                                            13-15-00155-cr
                                                           THIRTEENTH COURT OF APPEALS
                                                                  CORPUS CHRISTI, TEXAS
                                                                      12/4/2015 2:45:34 PM
                                                                          Dorian E. Ramirez
                                                                                     CLERK

                    NO. 13-15-00155-CR

                           IN THE
                                                RECEIVED IN
                                          13th COURT OF APPEALS
                 COURT OF APPEALS FOR THE
                                      CORPUS CHRISTI/EDINBURG, TEXAS
                                           12/4/2015 2:45:34 PM
           THIRTEENTH SUPREME JUDICIAL DISTRICT
                                            DORIAN E. RAMIREZ
                                                   Clerk
                    CORPUS CHRISTI, TEXAS
   ______________________________________________________ F I L E D
                                                        IN THE 13TH COURT OF APPEALS
                  FRED NICOLAS GONZALEZ,                        CORPUS CHRISTI

                                                               12/04/2015
                                           APPELLANT,
                                                      DORIAN E. RAMIREZ, CLERK
                            VS.                       BY smata


                    THE STATE OF TEXAS,

                                         APPELLEE
   _______________________________________________________

                    ON APPEAL FROM THE
               206TH JUDICIAL DISTRICT COURT
               EDINBURG, HIDALGO COUNTY, TEXAS
           IN TRIAL COURT CAUSE NO. CR-3982-14-D
________________________________________________________

                   APPELLANT’S BRIEF

     FILED UNDER THE AUTHORITY OF ANDERS V. CALIFORNIA,
                   97 S.CT. 1396 (1967)
________________________________________________________

                                     ALFREDO MORALES, JR.
                                      ATTORNEY AT LAW
                                       P.O. BOX 52942
                                    MCALLEN, TX 78505-2942
                                      (956) 536-8800 BUS
                                      (956) 381-4269 FAX
                                    EMAIL: amjr700@gmail.com
                                      SBOT NO. 14417290
                                     APPELLANT’S COUNSEL


                  ORAL ARGUMENT WAIVED
               IDENTITY OF PARTIES AND COUNSEL

    The undersigned counsel of record certifies that the

following listed persons have an interest in the outcome of

this case.   These representations are made so that the

justices of this honorable court may properly evaluate said

information to determine the existence of any reason which

would require their disqualification and/or recusal from

the case at bar.

     A.   PARTIES

          Appellant:              Fred Nicolas Gonzalez

          Appellee:               The State of Texas

     B.   COUNSEL ON APPEAL

          For Appellant:          Alfredo Morales, Jr.
                                  Attorney at Law
                                  P. O. Box 52942
                                  McAllen, TX 78505-2942

          For Appellee:           Theodore Hake
                                  Assistant District Attorney
                                  Appellate Division
                                  Hidalgo County Courthouse
                                  100 N. Closner
                                  Edinburg, TX 78539




                              i
                  TABLE OF CONTENTS


IDENTITIES OF PARTIES AND COUNSEL . . . . . . . . . . i

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . ii

INDEX OF AUTHORITIES . . . . . . . . . . . . . . . iii - iv

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . 1

APPELLANT’S POINTS OF ERROR . . . . . . . . . . . . . 1 - 2

STATEMENT OF FACTS . . . . . . . . . . . . . . . . . 2 - 3

SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . 3

ARGUMENTS AND AUTHORITIES TO SUPPORT
COUNSEL’S ASSESSMENT OF NO APPEALABLE ISSUES . . . 4 - 8

CONCLUSION . . . . . . . . . . . . . . . . . . . 9 - 10

PRAYER . . . . . . . . . . . . . . . . . . . . . . . 10

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . 11




                          ii
                 TABLE OF AUTHORITIES

STATUTES

    TEX CODE OF CRIMINAL PROCEDURE, ART. 26.13 . . 2, 5

                      CASES

UNITED STATES SUPREME COURT

    Anders v. California,
         87 S. Ct. 1396 (1967) . . . . . . . . . 4, 8

    Douglas v. California,
         83 S. Ct. 814 (1963) . . . . . . . . . . . . 8

    Penson v. Ohio,
         109 S. Ct. 346 (1988) . . . . . . . . . . . . 8


TEXAS COURT OF CRIMINAL APPEALS

    Ex Parte Morrow,
         952 S.W.2d 530 (Tex. Crim. App. 1997) . . . . 8

    Fuller v. State,
         253 S.W.3d 220 (Tex. Crim. App. 2008) . . . 5

    Gonzalez v. State,
         313 S.W.3d 840 (Tex. Crim. App. 2010) . . . 5

    Harris v. State,
         656 S.W.2d 481 (Tex. Crim. App. 1983) . .   7

    In Re Schulman,
         252 S.W.3d 403 (Tex. Crim. App. 2008) . . . . 8

    Jones v. State,
         98 S.W.3d 700 (Tex. Crim. App. 2003) . . . . 9

    Mitchell v. State,
         68 S.W.3d 640 (Tex. Crim. App. 2002) . . . 6

    Stafford v. State,
         813 S.W.2d 503 (Tex. Crim. App. 1991) . . 4, 8

                        iii
TEXAS COURTS OF APPEAL

    Arista v. State,
         2 S.W.3d 444 (Tex. App. – San Antonio
         1999 . . . . . . . . . . . . . . . . . . . 5

    Carroll v. State,
         176 S.W.3d 249 (Tex. App. – Houston [1st
         Dist.] 2004) . . . . . . . . . . . . . . . 5

    Hodges v. State,
         116 S.W.3d 289 (Tex. App. – Corpus Christi
         2003) . . . . . . . . . . . . . . . . . . . 6

    Lockett v. State,
         394 S.W. 577 (Tex. App. – Dallas 2012) . . 5

    Ortiz v. State,
         849 S.W.2d 921 (Tex. App. – Corpus
         Christi 1993) . . . . . . . . . . . . . . .     4

    Staggs v. State,
         314 S.W.3d 155 (Tex. App. – Houston [14th
         Dist.] 2010 . . . . . . . .. . . . . . . . . 6

    Williams v. State,
         848 S.W.2d 906 (Tex. App. – Corpus Christi
         1993) . . . . . . . . . . . . . . . . . . . 6




                         iv
                   STATEMENT OF THE CASE

    Appellant Fred Nicolas Gonzalez was charged by

indictment with the offense of failure to comply with

sex offender registration.       (CR. Vol. 1, p. 5).

    On January 30, 2015, Appellant pled guilty to the

offense as charged in the indictment and requested that

a pre-sentence (PSI) report be submitted for the trial

court’s consideration at the punishment phase of the

guilty plea proceedings. (RR. Vol. 5, pp. 5 – 37).

    On March 16, 2015, the trial court conducted the

punishment hearing in the case and, after the presentation

of evidence and arguments by State’s and Appellant’s

respective counsel, including a request from the Appellant

for leniency, the trial court assessed punishment for the

charged offense at 10 years confinement in the Texas

Department of Criminal Justice.       (RR. Vol. 7, pp. 4 – 10).

    Appellant then timely filed his notice of appeal with

the trial court.    (CR. Vol. 1, p. 86).

              APPELLANT’S POINTS OF ERROR

    The undersigned court-appointed counsel for Appellant

has made a determination, based on his complete review,

study, and analysis of the entire appellate record and

pertinent case law, that Appellant’s present appeal

                             1
contains no potential errors for the appellate court’s

consideration and review and, accordingly, files this

no-merits brief, on behalf of the Appellant, under the

authority of Anders v. California, 87 S.Ct. 1396 (1967).

                   STATEMENT OF FACTS

    Appellant’s guilty plea hearing was held on January

30, 2015.   In accordance with Art. 26.13, the trial court,

prior to accepting the his guilty plea, confirmed

Appellant’s mental competence, and then admonished him

on all of the following:   nature and classification of the

offense; range of punishment; immigration consequences;

sex offender registration; terms and conditions of the

plea agreement; waiver of jury and other constitutional

rights; discovery compliance and waivers; acceptance of

plea agreement; and, notification of his right to appeal.

    Appellant also stipulated to the trial court’s

venue and jurisdiction, and to the underlying facts of

the case and all of the other evidence (in the form of

police reports, witness statements, and other exhibits) to

substantiate his guilty plea.

    Additionally, the trial court accepted, as evidence,

the State’s and Appellant’s agreement on the determination

of Appellant’s competence, in which two psychological

                            2
reports submitted by two independent psychologist

confirmed his mental competence to stand trial, and were

attached as exhibits to the Appellant’s plea documents.

    After concluding that the Appellant had entered his

guilty plea knowingly and voluntarily, the trial court

advised Appellant it would accept his guilty plea, and

accordingly, found the Appellant guilty of the charged

offense.   The trial court then set the matter for a

separate punishment hearing, given that the Appellant

had requested the preparation of a PSI report.   (RR.

Vol. 5, 5- 33).

    At Appellant’s punishment hearing, the trial court,

after giving due regard to the PSI report, and hearing

arguments from State’s and Appellant’s counsel, together

with Appellant’s plea for leniency, imposed punishment

at 10 years confinement in the Texas Department of Criminal

Justice.   (RR. Vol. 7, pp. 4 – 10).

                  SUMMARY OF THE ARGUMENT

    After a thorough and careful examination of the

appellate record in this cause, together with all of the

exhibits, it is Appellant’s counsel’s professional opinion

and conclusion that the Appellant’s appeal contains no

potential reversible errors, is unmeritorious, and does not

                           3
warrant appellate review.

    ARGUMENT AND AUTHORITIES TO SUPPORT COUNSEL’S
          ASSESMENT OF NO APPEALABLE ISSUES

    The undersigned court-appointed counsel for Appellant

has conducted a thorough and careful review of the Clerk’s

Record, the Reporter’s Record, and all of the accompanying

exhibits in this cause to determine the viability of any

potential error for appellate review.    Based on counsel’s

evaluation and assessment of the entire appellate record,

he is of the opinion that the Appellant’s case herein

presents no legal issue to support a meritorious appeal

before this honorable court.    Nonetheless, mindful of

the Court of Criminal Appeals’ (and this court’s )

decisions interpreting the United States Supreme Court’s

opinion in Anders v. California, 87 S.Ct. 1396 (1967) –

namely, Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App.

1991) and Ortiz v. State, 849 S.W.2d 921 (Tex. App. –

Corpus Christi 1993), he would submit that the following

subject matter areas, which specifically apply in the

context of guilty plea proceedings, were identified,

explored, and researched for any potential colorable claims

for possible appellate review:    1) PLEA ADMONISHMENTS:

based on the appellate record on file with the court, the


                            4
trial court substantially complied with all of the

requirements set forth in Art. 26.13 of the Texas Code of

Criminal Procedure. Fuller v. State, 253 S.W.3d 220 (Tex.

Crim. 2008); Lockett v. State, 394 S.W.3d 577 (Tex. App. –

Dallas 2012); 2) APPELLANT’S MENTAL COMPETENCE:    Appellant

was found mentally competent by two psychologists who

examined him for purposes of the guilty plea hearing.

Accordingly, the record supported his mental competency

to enter a guilty plea in this cause.   Gonzalez v. State,

313 S.W.3d 840 (Tex. Crim. App. 2010); Arista v. State, 2

S.W.3d 444 (Tex. App. – San Antonio 1999); 3) APPELLANT’S

REQUEST FOR CHANGE OF COURT-APPOINTED COUNSEL:    The

trial court did not err in refusing to change counsel.

a defendant is not entitled to his choice of appointed

counsel.   Carroll v. State, 176 S.W.3d 249 (Tex. App. –

Houston [1st Dist.] 2004); 4) TRIAL COURT CONSIDERED PSI

REPORT:    Appellant contended that the trial court failed

to consider the PSI report prior to imposing the sentence.

the record demonstrates that the trial court, in fact,

read and considered the report (RR. Vol. 7, p. 5), even

though the statute does not specifically require that it do

so before assessing its sentence. Wright v. State,

873 S.W.3d 77 (Tex. App. – Dallas 1994); 5) GUILTY PLEA

                           5
SUBSTANTIATION: The evidence presented at the plea hearing,

including the Appellant’s judicial confession and

stipulations, were legally sufficient to substantiate the

Appellant’s guilty plea.   Hodges v. State, 116 S.W.3d 289

(Tex. App. – Corpus Christi 2003); Staggs v. State, 314

S.W.3d 155 (Tex. App. – Houston [1st Dist.] 2010); 6)

APPELLANT NOT PROMISED PROBATION:   The Appellant contended

his court-appointed lawyer promised him probation if he

pled guilty and requested a PSI report.   The appellate

record shows otherwise; the lawyer made it clear at the

hearing that the court was free to consider probation, but

was not required to do so, and that Appellant understood

as much. (RR. Vol. 7, pp. 6 – 7). Accordingly, plea was

entered knowingly and voluntarily, even though he was

under the impression he was going to receive probation.

Williams v. State, 848 S.W.2d 906 (Tex. App. – Corpus

Christi 1993); Assuming, arguendo, that his lawyer gave

him erroneous advice regarding his guilty plea, such issue

is best reserved for review through a habeas corpus

proceeding.   Mitchell v. State, 68 S.W.3d 640 (Tex. Crim.

App. 2002). 7) SENTENCE IMPOSED CONSTITUTIONAL: The

Appellant alleged that since the offense to which he pled

guilty is a “small crime” that the punishment imposed was

                            6
far too harsh and not proportional.     The offense to which

Appellant pled guilty is a second degree felony, punishable

by a sentence ranging from 2 to 20 years.    Therefore,

the sentence of 10 years imposed by the trial court

is within the applicable range of punishment for a second

degree felony and is, accordingly, appropriate and

constitutional.     Harris v. State, 656 S.W.2d 481 (Tex.

Crim. App. 1983).

    After a careful review and examination of all these

cited areas and the corresponding appellate record, the

undersigned counsel believes, in his professional opinion,

that no arguable points of error for appellate review

exit.

    The record in this case unequivocally reflects and

demonstrates that the Appellant was not only fully aware

of the consequences of his guilty plea, but that his plea

was knowingly, intelligently, and voluntarily made in

accordance with the United States and Texas Constitutions

and the Texas Code of Criminal Procedure.    Accordingly,

having been properly admonished by the trial court

regarding his constitutional and statutory rights, and

counsel finding no reversible errors in the plea

proceeding, Appellant’s guilty plea must stand.     Ex Parte

                             7
Morrow, 952 S.W.2d 530 (Tex. Crim. App. 1997).

     COURT-APPOINTED COUNSEL IS NOT ALLOWED TO URGE
                 UNMERITORIOUS APPEALS

    While an appellant has a right to the appointment

of counsel in a direct appeal when such is provide by

statue, as in the instant case, Douglas v. California, 83

S.Ct. 814 (1963), and it is the appellate attorney’s duty

to zealously represent the interests of the Appellant

on appeal, In Re Schulman, 252 S.W.3d 403 (Tex. Crim. App.

2008), an appointed appellate lawyer is not permitted to

present frivolous and unmeritorious claims in the appeals

courts.   Penson v. Ohio, 109 S.C.t 346 (1988); McCoy v.

Wisconsin, 108 S.Ct. 1895 (1988).   Accordingly, if, after

a conscientious examination of the appellate record,

court-appointed counsel finds that an appeal is frivolous

and unmeritorious he is duty-bound to advise the

appellate court accordingly, file a “no-merits’ brief with

the court, along with a motion to withdraw from the appeal.

Anders v. California, supra; Stafford v. State, supra.

    Following that rule of law, then, counsel for

Appellant herein, would represent to this court, as an

officer of this court, that he has carefully examined and

studied the record for any arguable appellate issues; that


                            8
he has made reference to the record, stating the reasons

why the Appellant’s appeal has no merit and supporting his

conclusions with applicable case law; and that, in his

professional judgment, there exists no issue which would

warrant appellate review from this court in this particular

case.

    Moreover, in accordance with the procedure approved by

the Texas Court of Criminal Appeals, and adopted by this

honorable court, the undersigned appellate counsel will

advise the Appellant of his conclusion that his

(Appellant’s) appeal presents no arguable issues for

appellate review; provide him with a copy of the Anders

brief filed in this cause with this court; and, inform

him of his right to personally examine the record and file

a pro se brief, if he so desires. Jones v. State, 98 S.W.3d

700 (Tex. Crim. App. 2003).

                      CONCLUSION

    The state of the appellate record demonstrates that

the Appellant entered his guilty plea to the offense of

failure to comply with sex offender registration knowingly,

intelligently, and voluntarily.

    Therefore, consistent with the Anders requirement,

although several areas and issues were analyzed and

                          9
researched for potential reversible errors, after a careful

and comprehensive review of the entire record, the

undersigned counsel concludes that there are no points of

error which could arguably support an appeal in the

instant case.

                      PRAYER

    Wherefore, the undersigned counsel requests that

this court review the Appellant’s Brief he has submitted

in this cause to ensure that it complies with the Anders

requirements; that it conduct an independent examination of

the appellate record; that it resolve and dispose of the

appeal in a manner that is consistent with the law; and,

that it allow counsel to withdraw from the appeal.

                                 Respectfully Submitted,

                                 Alfredo Morales, Jr.
                                 Attorney at Law
                                 P. O. Box 52942
                                 McAllen, TX 78505
                                 (956) 536-8800 BUS
                                 (956) 381-4269 FAX
                                 Email: amjr700@gmail.com

                                 /S/ Alfredo Morales, Jr.
                                 ________________________
                                   ALFREDO MORALES, JR.
                                  STATE BAR NO. 14417290




                         10
                   CERTIFICATE OF SERVICE

     I, Alfredo Morales, Jr., hereby certify that a true

and correct copy of the foregoing Appellant’s Anders Brief

was mailed or hand-delivered to the Hon. Ted Hake, ADA,

Chief, Appellate Division, Hidalgo County District

Attorney’s Office, Hidalgo County Courthouse, 100 N.

Closner, Edinburg, Texas 78539, on this the 4th day of

December   2015.

                                   /S/ Alfredo Morales, Jr.
                                   ________________________
                                     ALFREDO MORALES, JR.


                CERTIFICATE OF COMPLIANCE

     I, Alfredo Morales, Jr., certify that the Appellant’s

Brief filed in this cause complies with the word limitation

imposed under Rule 9.4(2)(B) of the Texas Rules of

Appellate Procedure.    Appellant’s counsel would represent

that, relying on the computer-generated program figure, the

total number of words contained in the brief is 2745 words.

                                  /S/ Alfredo Morales, Jr.
                                  ________________________
                                    ALFREDO MORALES, JR.




                            11
