Opinion
01-22-00758-CR
08-08-2023
SAMUEL ALEJANDRO GARZA, Appellant v. THE STATE OF TEXAS, Appellee
Do not publish. Tex.R.App.P. 47.2(b).
On Appeal from the 344th Judicial District Court Chambers County, Texas Trial Court Case No. 21DCR0343
Panel consists of Justices Goodman, Landau, and Rivas-Molloy.
MEMORANDUM OPINION
Sarah Beth Landau Justice
Samuel Alejandro Garza appeals the trial court's judgment finding him guilty of the felony offense of robbery and sentencing him to 20 years' confinement.
Garza's appointed counsel on appeal has moved to withdraw and submitted an Anders brief, declaring there are no nonfrivolous bases for appeal. Garza did not file a response, and the State waived its right to respond to the Anders brief. We grant counsel's motion and affirm.
See Anders v. California, 386 U.S. 738 (1967).
Background
Garza pleaded guilty to the offense of robbery and true to an enhancement paragraph. The trial court deferred a finding of guilt until a presentence investigation report was completed. Later, at the presentence investigation hearing, the State offered Garza's plea paperwork and the presentence investigation report as an exhibit. Defense counsel presented mitigating evidence through the testimony of six witnesses. The trial court sentenced Garza to 20 years' confinement.
Garza filed a pro se notice of appeal, and the trial court appointed appellate counsel. Appellate counsel has now moved to withdraw and filed an Anders brief stating that there are no nonfrivolous issues for appeal. See Anders v. California, 386 U.S. 738, 744 (1967).
Anders Procedures
When appointed counsel believes an appeal by a criminal defendant is frivolous, counsel may file both a motion to withdraw and an Anders brief. In re Schulman, 252 S.W.3d 403, 406 (Tex. Crim. App. 2008) (citing Anders, 386 U.S. at 744). An Anders brief reflects the fact that counsel has adequately researched the case before deciding to withdraw. Id. at 407. It sets out counsel's due diligence, informs the client, and provides a roadmap for the appellate court's review of the record. Id. It also assists the client by providing citations to the record if he wishes to exercise his right to file a pro se brief. Id. at 407-08. An Anders brief is appropriate only when counsel has mastered the record and the evidence and determines that there are no sustainable grounds for appeal. Banks v. State, 341 S.W.3d 428, 430 (Tex. App.-Houston [1st Dist.] 2009, order), disp. on merits, No. 01-08-00286-CR, 2010 WL 1053218 (Tex. App.-Houston [1st Dist.] Mar. 11, 2010, no pet.) (mem. op., not designated for publication). If counsel finds that the appeal contains potentially meritorious grounds, counsel must file a merits brief with the court. In re Schulman, 252 S.W.3d at 406 n.9; Banks, 341 S.W.3d at 430; see Stafford v. State, 813 S.W.2d 503, 509-10 (Tex. Crim. App. 1991).
If counsel determines that potential grounds for appeal exist but that those grounds would be frivolous, counsel must explain those grounds for appeal with citations to applicable legal authority and pertinent evidence. In re Schulman, 252 S.W.3d at 407; Banks, 341 S.W.3d at 431. Counsel should "point out where pertinent testimony may be found in the record, refer to pages in the record where objections were made, the nature of the objection, the trial court's ruling, and discuss either why the trial court's ruling was correct or why the appellant was not harmed by the ruling of the court." High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. 1978). The purpose of this requirement is to convince the courts of appeals that counsel has given due consideration to any potential ground for appeal before dismissing it as frivolous. See In re Schulman, 252 S.W.3d at 407-09 (stating courts of appeals will not grant motion to withdraw if Anders brief does not show that record was carefully reviewed); High, 573 S.W.2d at 811 (describing importance of disclosing both legal authority and potential grounds for appeal); Banks, 341 S.W.3d at 431 (same).
Even when counsel believes that there are no grounds that might convince an appellate court, counsel must still file an Anders brief, and the Anders brief must direct the court of appeals to the portions of the record that could have created error but did not. Banks, 314 S.W.3d at 431. Counsel may not provide a mere conclusory statement that no grounds for appeal exist. In re Schulman, 252 S.W.3d at 406-07; see Anders, 386 U.S. at 742. While the courts of appeals have a supervisory role, they should not have to pour over the record to determine that counsel has completed a thorough review of the record. Banks, 341 S.W.3d at 431. If we conclude, after conducting an independent review, that "appellate counsel has exercised professional diligence in assaying the record for error" and agree that the appeal is frivolous, we should grant counsel's motion to withdraw, Meza v. State, 206 S.W.3d 684, 689 (Tex. Crim. App. 2006), and affirm the trial court's judgment. In re Schulman, 252 S.W.3d at 409.
In this Anders brief, counsel has discussed that this appeal is meritless and frivolous because the record contains no reversible error. Counsel specifically discussed and briefed: (1) Garza's right to appeal; (2) the admonishments given to Garza; (3) Garza's trial objections; (4) Garza's punishment; and (5) Garza's guilty plea. Garza did not file a response, and the State declined to respond to the Anders brief.
If appellant's counsel moves to withdraw because an appeal is frivolous and fulfills the Anders requirements, we must independently examine the record to see if there is any arguable ground that might be raised on an appellant's behalf. Stafford, 813 S.W.2d at 511. When performing this evaluation, we consider the record, the arguments raised in the Anders brief, and any issues that an appellant might raise in a pro se brief. In re Schulman, 252 S.W.3d at 409. Only afterward may we grant counsel's motion to withdraw. See Penson v. Ohio, 488 U.S. 75, 82-83 (1988).
We have scrutinized counsel's Anders brief, the State's waiver of its right to respond to the Anders brief, and the appellate record. We agree with counsel that this appeal is meritless and frivolous. Bledsoe v. State, 178 S.W.3d 824, 827-28 (Tex. Crim. App. 2005).
Conclusion
We grant counsel's motion to withdraw and affirm the trial court's judgment. Counsel must immediately send the required notice and file a copy of that notice with the Clerk of this Court. See TEX. R. APP. P. 6.5(C).