NUMBER 13-10-00310-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

 

ROSENDO TAMAYO JR., Appellant,

v.

THE STATE OF TEXAS, Appellee.

 

On appeal from the County Court at Law No. 3

of Cameron County, Texas.

 

MEMORANDUM OPINION

Before Justices Benavides, Vela and Perkes

Memorandum Opinion by Justice Benavides

Rosendo Tamayo Jr., appellant, was found guilty of driving while intoxicated and 

was sentenced to 180 days in the county jail which was probated for fifteen months. 

See TEX. PENAL CODE ANN. ' 49.04 (West 2003). Tamayo’s appellate counsel, 

concluding that "there are no arguable grounds to be advanced on appeal," filed an 

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

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 his review 

of the record yielded no grounds or error upon which an appeal can be predicated. 

Although counsel=s brief does not advance any arguable grounds of error, it does 

present a professional evaluation of the record demonstrating why there are no arguable 

grounds to be advanced on appeal. See In re Schulman, 252 S.W.3d 403, 407 n.9 

(Tex. Crim. App. 2008) (AIn 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, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel 

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

there are no errors in the trial court's judgment. Counsel has informed this Court that he 

has: (1) examined the record and found no arguable grounds to advance on appeal; (2) 

served a copy of the brief and counsel=s motion to withdraw on appellant; and (3) 

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

thirty days.1 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. 

 

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The Texas Court of Criminal Appeals has held that Athe 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 403, 409 n.23 (Tex. Crim. App. 

2008) (quoting Wilson v. State, 955 S.W.2d 693, 696-97 (Tex. App.—Waco 1997, no pet.)).
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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). We have reviewed the entire record, counsels’s brief, and have 

found nothing that would arguably support an appeal. See Bledsoe v. State, 178 

S.W.3d 824, 826-28 (Tex. Crim. App. 2005) (ADue 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. More than 

an adequate period of time has passed, and Tamayo has not filed a pro se response. 

See In re Schulman, 252 S.W.3d at 409. 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 A[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 the date of this Court=s opinion, 

counsel is ordered to send a copy of the opinion and judgment to appellant and to advise 
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appellant of his right to file a petition for discretionary review.2 See TEX. R. APP. P. 48.4.

________________________

GINA M. BENAVIDES,

Justice

Do not publish.

TEX. R. APP. P. 47.2 (b).

Delivered and filed the

4th day of August, 2011. 

 

2 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 

that was overruled by this Court. See TEX. R. APP. P. 68.2. Any petition for discretionary review must be 

filed with this Court, after which it will be forwarded to the Texas Court of Criminal Appeals. See TEX. R.

APP. P. 68.3, 68.7. Any petition for discretionary review should comply with the requirements of Rule 68.4 

of the Texas Rules of Appellate Procedure. See TEX. R. APP. P. 68.4.