NUMBER 13-16-00003-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

 

JOE HENRY GARCIA, Appellant,

v.

THE STATE OF TEXAS, Appellee.

 

On appeal from the 36th District Court

of San Patricio County, Texas.

 

MEMORANDUM OPINION

Before Justices Rodriguez, Benavides, and Perkes

Memorandum Opinion by Justice Benavides

On February 2, 2015, appellant Joe Henry Garcia pleaded guilty to the offense of 

sexual assault of a child, a second degree felony, see TEX. PENAL CODE ANN. § 22.011 

(West, Westlaw through 2015 R.S.), and was placed on ten years’ deferred community 

supervision. On November 6, 2015, the State filed a motion to revoke probation based 
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on numerous violations of community supervision conditions, including that Garcia was 

found guilty of felony driving while intoxicated, see id. §§ 49.04, 49.09 (West, Westlaw 

through 2015 R.S.), and had been sentenced to ten years in prison. Garcia pleaded not 

true to the probation violations and requested a hearing before the trial court. 

After the hearing, the trial court found five of the six allegations in the State’s motion 

to revoke true and revoked Garcia’s community supervision. It sentenced him to twenty 

years’ imprisonment in the Texas Department of Criminal Justice—Institutional Division. 

Garcia was granted the limited right to appeal. Garcia’s court-appointed appellate 

counsel has filed an Anders brief. See Anders v. California, 386 U.S. 738, 744 (1967). 

We affirm.

I. ANDERS BRIEF

Pursuant to Anders v. California, Garcia’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 error upon which an appeal can be predicated. See id. 

Counsel’s brief meets the requirements of Anders as it presents a professional evaluation 

demonstrating why there are no arguable grounds to advance on appeal. See Stafford 

v. State, 813 S.W.2d 503, 510 n.3 (Tex. Crim. App. 1991); In re Schulman, 252 S.W.3d 

403, 407 n.9 (Tex. Crim. App. 2008) (orig. proceeding) (“In Texas, an Anders brief need 

not specifically advance ‘arguable’ points of error if counsel finds non, 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.)).

In compliance with High v. State and Kelly v. State, Garcia’s counsel carefully 
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discussed why, under controlling authority, there is no reversible error in the trial court’s 

judgment. See High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel Op.] 1978); 

Kelly v. State, 436 S.W.3d 313, 319–22 (Tex. Crim. App. 2014). Garcia’s appellate 

counsel also notified this Court that he: (1) notified Garcia that he has filed an Anders

brief and a motion to withdraw; (2) provided Garcia with copies of both pleadings; (3) 

informed Garcia of his rights to file a pro se response, review the record preparatory to 

filing that response,1 and seek discretionary review if we concluded that the appeal is 

frivolous; (4) provided Garcia with a copy of the appellate record; and (5) informed Garcia 

that the pro se response, if any, should identify for the Court those issues which he 

believes the Court should consider in deciding whether the case presents any meritorious 

issues. 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. A reasonable 

amount of time has passed, and Garcia had not filed a pro se response.

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). A court of appeals has two options when an Anders brief and a 

subsequent pro se response are filed. After reviewing the entire record, it may: (1) 

determine that the appeal is wholly frivolous and issue an opinion explaining that it finds 

 

1 The Texas Court of Criminal Appeals has held that “the 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 to 

case presents any meritorious issues.” In re Schulman, 252 S.W.3d at 409 n.23 (quoting Wilson v. State, 

955 S.W.2d 693, 696–97 (Tex. App.—Waco 1997, no pet.)). 
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no reversible error; or (2) determine that there are arguable grounds for appeal and 

remand the case to the trial court for appointment of new appellate counsel. Bledsoe v. 

State, 178 S.W.3d 824, 826–27 (Tex. Crim. App. 2005). If the court finds arguable 

grounds for appeal, it may not review those grounds until after new counsel has briefed 

those issues on appeal. Id. at 827. 

We have reviewed the entire record and counsel’s brief, and we have found 

nothing that would arguably support an appeal. See id. at 827–28 (“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. There is no reversible error in the record. Accordingly, the judgment of the trial 

court is affirmed. 

III. MOTION TO WITHDRAW

In accordance with Anders, Garcia’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 Jeffrey 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 this Court’s opinion, counsel is ordered to send 

a copy of this opinion and this Court’s judgment to Garcia and advise him of his right to 
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file a petition for discretionary review. 2 See TEX. R. APP. 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).

IV. CONCLUSION

We affirm the judgment of the trial court.

 

GINA M. BENAVIDES,

Justice

Do not publish.

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

Delivered and filed the

21st day of July, 2016. 

 

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 or 

timely motion for en banc reconsideration that was overrule by this Court. See TEX. R. APP. P. 68.2. Any 

petition for discretionary review must be filed with the clerk of the Court of Criminal Appeals, see TEX. R.

APP. P. 68.3, and should comply with the requirements of the Texas Rule of Appellate Procedure 68.4. 

See TEX. R. APP. P. 68.4.