## NUMBER 13

- 17

- 00 119

- CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

- EDINBURG

LEONARDO VASQUEZ , Appellant,

v.
THE STATE OF TEXAS, Appellee.

On appeal from the 138th District Court of Cameron County, Texas.



## MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Rodriguez and Benavides Memorandum Opinion by Chief Justice Valdez
Appellant Leonardo Vasquez was charged with capital murder and aggravated

kidna p ping following the abduction and murder of Reyes Bocanegra. See T EX

. P ENAL

C ODE A NN . §§ 19.03(a)(2), 20.04(b) (West, Westlaw through 2017 1st C.S.). Vasquez

plea

- bargained for a thirty

- year prison sentence on the aggravated kidnapping charge on

the condition that the State drop the capital murder charge. In accordance with this plea

-2 bargain agreement, V asquez pleaded guilty to aggravated kidnapping, he was sentenced

to thirty years in prison, and the State dismissed the capital murder charge. The trial court

granted Vasquez permission to appeal. This appeal followed.

Vasquez’s court

- appointed counsel has filed an Anders brief. See Anders v.

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

I. **A NDERS**  B RIEF

Pursuant to Anders v. Cali fornia , Vasquez’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 reversible error upon which an appeal can be predicated. See id.

Counsel’s brief m eets 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) (orig. proceeding) (“In Texas,

an Anders brie f 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.

Ap p.

— 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) and Kelly v. State , 436 S.W.3d 313, 319

– 22 (Tex. Crim. App. 201 4), Vasquez’s

counsel carefully discussed why, under controlling authority, there is no reversible error

in the trial court’s judgment. Vasquez’s counsel has also informed this Court that he has

(1) notified Vasquez that he has filed an Anders brief and a motion to withdraw; (2)

provided Vasquez with copies of both pleadings; (3) informed Vasquez of his rights to file3 a pro se response, to review the record preparatory to filing that response, and to seek

discretionary review in the Texas Court of Criminal Appeals if this Court finds that the

appeal is frivolous; and (4) provided Vasquez with a form motion for pro se access to the

appellate record with instructions to file the motion in this Court. See Anders , 386 U.S.

at 744; Kelly , 436 S.W.3d at 319

– 20, Stafford , 813 S.W.2d at 510 n.3; see also In re

Schulman , 252 S.W.3d at 409 n.23. Vasquez has filed a pro se brief, in which he raises

two issues. 1

II. I NDEPENDENT R EVIEW
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). After reviewing the entire record, counsel’s Anders brief, and Vasquez’s

pro se brief, we find no thing that would arguably support an appeal. 2 See Bledsoe v.

1 After Vasquez filed his pro se brief, the State sought to include a copy of a presentence investigation (PSI) report in the appellate record. Over Vasquez’s objection, we granted the State’s motion. We are now of the opinion that the State’s motio n was improvidently granted. Accordingly, our review of the appellate record does not encompass the PSI report. Because the PSI report is not part of the appellate record, Vasquez is not entitled to review a copy of it for purposes of preparing a pro se response. Accordingly, the Cameron County District Clerk is under no obligation to furnish Vasquez a copy of the PSI report for purposes of this direct appeal.

2 We note that Vasquez’s pro se brief raised an issue regarding whether the trial court err ed by failing to approve in writing his waiver of rights and consent to stipulate to evidence, as required by article 1.15 of the Texas Code of Criminal Procedure. See T EX

. C ODE C RIM

. P ROC

. A NN . § 1.15 (West, Westlaw through 2017 1st C.S.) (providing that no defendant shall be convicted of a felony in a case not tried to a jury without sufficient evidence of guilt and that such evidence may take the form of a stipulation, consented to by the defendant and approved in writing by the trial judge). In McClai n v. State

, the Texas Court of Criminal Appeals conclud ed that evidence stipulated to by a defendant could not be considered in determining whether there was sufficient evidence to support defendant’s conviction, as required by article 1.15, where the defendant’s consent to stipulate wa s not signed by the trial judge . 730 S.W .2d 739 (Tex. Crim. App. 1987). In Ybarra v. State , we held that the trial judge’s failure to sign the appellant’s consent to stipulate was harmless where “ appellant signed a judi cial confession wherein he confessed to committing the crime as alleged in the indictment, and this confession was admitted into evidence at the plea hearing .” 93 S.W.3d 922, 927 (Tex. App

. — Corpus Christi 2002, no pet.). Here, the trial judge did not sig n Vasquez’s consent to stipulate. However, as in Ybarra , this error was rendered harmless because Vasquez signed a judicial confession, which the trial court admitted into evidence at the plea hearing (as per the trial judge’s seventh post

- abatement findi ng of fact, dated June 7, 2018). Thus, we conclude that Vasquez’s complaint under article 1.15 does not support an appeal

.4 State , 178 S.W.3d 824, 827

– 28 (Tex. Crim. App. 2005) (“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.

III. M OTION TO W ITHDRAW

In accordance with Anders , Vasquez’s attorney has asked this Court for

permission to withdraw as counsel. 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.) (“[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 this opini on and this Court’s judgment to Vasquez and to advise him of

his right to file a petition for discretionary review. 3 See T EX

. R. A PP

. 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).

3 No substit ute counsel will be appointed. If Vasquez seeks 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 timel y motion for rehearing or timely motion for en banc reconsideration that was o verruled by this Court. See T EX

. R. A PP

. P. 68.2. A petition for discretionary review must be filed with the clerk o f the Court of Criminal Appeals. See id. R. 68.3. Any peti tion for discretionary review should comply with the requirements of Texas Rule of Appellate Procedure 68.4. See id. R. 68.4.5 /s/ Rogelio Valdez ROGELIO VALDEZ C hief Justice

Do not publish. T EX

. R. A PP

. P. 47.2(b).

Delivered and filed this 28th day of June, 2018.