### NUMBER 13 - 12 - 00124 - CR COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI

– EDINBURG

ANDREW DELEON , Appellant,

v. THE STATE OF TEXAS, Appellee.

On appeal from the 319 th District Court of Nueces County, Texas

.


## MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Garza and Perkes Memorandum Opinion by Chief Justice Valdez Appellant, Andrew DeLeon, was convicted by a jury of two counts of sexual assault of a child, a second

- degree felony, enhanced to a first

- degree felony

. 1 See T EX

. P ENAL C ODE A NN

. § 22.011 (West 2011 ). Appellant was sentenced to twelve years’

1 Pursuant to a plea bargain with the State, at sentencing, appellant pleaded “true” to the State’s allegation that he is a habitual felony offender.2

confinement for each count. The trial court ordered the sentences to run concurrently. Appellan t ’s appellate counsel, concluding that the appeal in this cause is frivolous, filed

an Anders brief, in which he reviewed the merits, or lack thereof, of the appeal. We
affirm.
I. A NDERS B RIEF Pursuant to Anders v. California , 386 U.S. 738, 744 (1967), ap pellant ’s appellate counsel has filed a motion to withdraw and a brief with this Court stating that he was unable to find any non

- frivolous error or any meritorious issues . Counsel’s brief meets the requirements of Anders as it presents a professional eva luation 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) ( A 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 Christi 2003, no pet.)); Staffor

d 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 t rial court’s judgment. Counsel specifically noted that he reviewed the following potential issues: (1) violation of “the Rule” 2 by witnesses at trial ; (2) whether any error occurred during the punishment phase of appellant’s trial; and (3)
whether trial counsel rendered ineffective assistance . Counsel then proceeded to explain why these potential issues are without merit. Counsel has demonstrated that he

2 See T EX

. R. E VID . 614

.3

has complied with the requirements of Anders by (1) examining the record and finding no arguable gro unds to advance on appeal, (2) serving a copy of the brief and motion to withdraw as counsel on appellant, and (3) informing appellant of his right to review the record and to file a pro se response. 3 See Anders , 386 U.S. at 744; Stafford , 813 S.W.2d at 5 10 n.3; see also In re Schulman , 252 S.W.3d at 409 n.23. More than an adequate period of time has passed , and a ppellant has not filed a pro se response. See In re Schulman , 252 S.W.3d at 409.
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). We h ave reviewed the entire record and counsel’s brief ; however, we have found nothing that would arguably suppo rt an appeal. See Bledsoe v. State , 178 S.W.3d 824, 826

– 28 (Tex. Crim. App. 2005) ( A 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. Accordingly, we affirm the judgment of the trial court.
III. M OTION TO W ITHDRAW In accordance with Anders , a ppellant ’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

3 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 the ca se p resents 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.)).4

(Tex. App.

— Dallas 1995, no pet.) ( A If an attorney believe s 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. @ ) (citatio ns 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 advise him of his right to file a petition for discretionary review. 4 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)

.

__________________ ROGELIO VALDEZ Chief Justice Do not publish. T EX

. R. A PP

. P. 47.2(b).
Delivered and filed the 8th day of August , 2013.

4 No substitute counsel will be appointed. Should appellant wish to see k 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 wit hin 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 overruled by this Court. See T EX

. R. A PP

. P. 68.2. Effective September 1, 2011, any petition for discretion ary review must be filed with the clerk of the Texas Court of Criminal Appeals. See id. R. 68.3. Any petition for discretionary review should comply with the requirements of Rule 68.4 of the Texas Rules of Appellate Procedure. See id. R

. 68.4.