NUMBER 13-09-146-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG 

 

LUIS SOTO, Appellant,

v.

THE STATE OF TEXAS, Appellee.

 

On appeal from the 148th District Court 

of Nueces County, Texas.

 

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Benavides and Vela

Memorandum Opinion by Justice Vela

Appellant, Luis Soto, was indicted for the criminal offense of possession of a

controlled substance. SeeTEX.HEALTH &SAFETY CODE ANN. § 481.115(a) (Vernon 2006).
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Soto entered into a plea bargain agreement, whereby in exchange for his plea of guilty, he

received a sentence of two years’ confinement in a State Jail Facility, probated for a period

of four years’ deferred adjudication probation and a $1,500.00 fine. On September 10,

2007, the State filed a motion to revoke Soto’s probation, and Soto pleaded true to the

allegations that he violated conditions of his probation. After this plea, the Court entered

a finding of guilt and placed Soto on community supervision for a period of three years.

On January 29, 2009, the State filed a second motion to revoke, and Soto again pleaded

true to allegations that he violated his conditions of probation except for one allegation that

he was behind on costs. After hearing evidence, the trial court found that Soto had

violated his conditions, revoked his probation, and sentenced him to fourteen months in

a State Jail Facility with credit for time served. Concluding that "there are no meritorious

issues for appeal," appellant's counsel filed a brief in which he reviewed the merits, or lack

thereof, of the appeal. We affirm.

I. Compliance with Anders v. California

Appellant's court-appointed counsel filed an Anders brief in which he has concluded

that there are no appealable issues for this Court to consider. See Anders v. California,

386 U.S. 738, 744 (1967). Appellant's brief meets the requirements of Anders. See id. at

744-45; High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. [Panel Op.] 1978); see also

In re Schulman, 252 S.W.3d 403, 407 n.9 (Tex. Crim. App. 2008) ("In 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
The Texas Court of Criminal Appeals has held that "the pro se response need not comply with the 1

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.)). 

3

Christi 2003, no pet.)); Stafford v. State, 813 S.W.2d 503, 510 n.3 (Tex. Crim. App. 1991).

In compliance with Anders, following his review of the Court's file and the transcripts, his

research, and his correspondence with appellant, counsel presented a professional

evaluation of the record including, among other things, a review of grand jury proceedings,

pre-trial motions, research and investigation, competency, sentencing, right to present

evidence during the guilt/innocence and punishment stages, and right to appeal. See

Anders, 386 U.S. at 744; Currie v. State, 516 S.W.2d 684, 684 (Tex. Crim. App. 1974); see

also High, 573 S.W.2d at 812.

Counsel has informed this Court that he has reviewed the appellate record and

concluded there are no arguable grounds for reversal. He has also informed this Court that

he provided appellant with a copy of the transcripts in his case, a copy of the brief, and

notified appellant of his right to review the record and to file a pro se response to counsel's

brief and motion to withdraw within thirty days. See In re Schulman, 252 S.W.3d at 409 1

n.23. More than an adequate period of time has passed, and appellant has not filed a pro

se response. Id. at 409; see also Anders, 386 U.S. at 744-45; Stafford, 813 at 509 (Tex.

Crim. App. 1991); High, 573 S.W.2d at 813.

II. Independent Review

The United States Supreme Court advised appellate courts that upon receiving a

"frivolous appeal" brief, they must conduct "a full examination of all the proceedings to
No substitute counsel will be appointed. Should appellant wish to seek further review of this case 2

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

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decide whether the case is wholly frivolous." Penson v. Ohio, 488 U.S. 75, 80 (1988); see

Ybarra v. State, 93 S.W.3d 922, 926 (Tex. App.–Corpus Christi 2003, no pet.).

Accordingly, we have carefully reviewed the record and have found nothing that would

arguably support an appeal. See Bledsoe v. State, 178 S.W.3d 824, 826 (Tex. Crim. App.

2005); Stafford, 813 S.W.2d at 509. We agree with counsel that the appeal is wholly

frivolous and without merit. See Bledsoe, 178 S.W.3d 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

requirements of Texas Rule of Appellate Procedure 47.1.").

III. Conclusion

The judgment of the trial court is affirmed. 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 "[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 his 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 appellant of his right to file a petition for discretionary review.2 See TEX. R. APP.
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.

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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). 

ROSE VELA

Justice

Do not publish.

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

Delivered and filed the 29th

day of April, 2010.