NUMBER 13-12-00371-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG 

 

ALBERT CUELLAR, Appellant,

v.

THE STATE OF TEXAS, Appellee.

 

On appeal from the 28th District Court 

of Nueces County, Texas.

 

MEMORANDUM OPINION

Before Chief Justice Valdez, Justices Garza, and Perkes

Memorandum Opinion by Justice Perkes

Appellant Albert Cuellar pleaded guilty to driving while intoxicated (DWI), his third 

DWI offense, a third-degree felony. See TEX. PENAL CODE ANN. § 49.04(a), 49.09(b)(2)

(West Supp. 2011). Appellant also pleaded “true” to a prior felony conviction, which

enhanced the DWI offense to a second-degree felony. See id. § 12.42(a) (West Supp. 
2

2011). There was no plea bargain. The trial court assessed appellant’s punishment at 

ten years’ incarceration in the Texas Department of Criminal Justice, Institutional 

Division. Appellant filed a notice of appeal, and, as discussed below, his 

court-appointed counsel filed an Anders brief. We affirm. 

I. ANDERS BRIEF

Pursuant to Anders v. California, 386 U.S. 738, 744 (1967), appellant’s 

court-appointed appellate counsel 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. 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 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 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 reversible 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;
3

and (3) informed appellant of his right to review the record and to file a pro se response.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. More than an adequate period of time has passed, and 

appellant has not filed a pro se response. See In re Schulman, 252 S.W.3d at 409.

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 and counsel’s brief, and have found 

nothing that would arguably support an appeal. See Bledsoe v. 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. 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, appellant’s attorney 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.) (“If an attorney believes the appeal is frivolous, he must 

withdraw from representing the appellant. To withdraw from representation, the 

 

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 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.)).
4

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 opinion and this Court’s judgment to appellant and to 

advise him of his right to 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).

GREGORY T. PERKES

Justice

Do not publish.

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

Delivered and filed the 

15th day of August, 2013.

 

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 overruled by this Court. See TEX. R. APP. P. 68.2. 

Effective September 1, 2011, any petition for discretionary review must be filed with the clerk of the Court of 

Criminal Appeals. See TEX. R. APP. P. 68.3. Any petition for discretionary review should comply with the 

requirements of Texas Rule of Appellate Procedure 68.4. See TEX. R. APP. P. 68.4.