### NUMBER 13 - 10 - 00 38 5 - C R 

## COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI

- 

## EDINBURG

ROMAN LUNA RODRIGUEZ JR. , A ppellant,

v. THE STATE OF TEXAS , Appellee.

On appeal from the 398 th District Court of Hidalgo County, Texas.


## MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Benavides

Memorandum Opinion by Justice Benavides Roman Luna Rodriguez Jr. , appellant, pleaded guilty to aggravated sexual assault of a child and was sentenced to ten ye ars confinement in June 2003. See T EX

. P ENAL C ODE A NN

. ' 22 .02 1(a)(2)(B) ( West Supp. 2010 ). In 2010, Rodriguez filed a pro se motion seeking DNA testing and examination under code of criminal p rocedure, article 64.01. See T EX

. C ODE C RIM

. P ROC

. A NN . art. 64.01 (West Supp. 2010). The motion was denied. Rodriguez then filed a pro se notice of appeal. This court abated2

the matter and remanded to the trial court for a hearing on indigence and appointment of appellate counsel. After a hearing, the trial co urt appointed appellate counsel. Rodriguez’s appellate counsel, concluding that "there are no arguable grounds to be advanced on appeal," filed an Anders brief in which he reviewed the merits, or lack thereof, of the appeal. Thereafter, Ro driguez filed a pro se response. We affirm.
I. D ISCUSSION Pursuant to Anders v. California , 386 U.S. 738, 744 (1967), appellant = s
court

- appointed appellate counsel has filed a brief with this Court, stating that his review of the record yielded no groun ds or error upon which an appeal can be predicated. Although counsel = s brief does not advance any arguable grounds of error, it does present a professional evaluation of the record demonstrating why there are no arguable grounds to be advanced 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 se t 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 (Te x. Crim. App. [Panel Op.] 1978), appellant's counsel has carefully discussed why, under controlling authority, there are no errors in the trial court's judgment. Counsel has informed this Court that he has: (1) examined the record and found no arguable g rounds to advance on appeal; (2) served a copy of the brief and counsel = s motion to withdraw on appellant; and (3) informed appellant of his right to review the record and to file a pro se response within3

thirty days. 1 See Anders , 386 U.S. at 744; Staffor d , 813 S.W.2d at 510 n.3; see also In re Schulman , 252 S.W.3d at 409 n.23. Rodriguez a lso filed a pro se response

. 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 have reviewed the entire record, counsel's brief and Rodriguez’s pro se response and have found nothing that would arguably support 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 , 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 A [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

1 The Texas Court of Criminal Appeals has held that A the pro se response need not comply with the rules of appell ate 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

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 to advise appellant of his right to file a petition for discretionary review. 2 See T EX

. R. A PP

. P. 48.4.

___ _____________________ GINA M. BENAVIDES, Justice Do not publish. T EX

. R. A PP

. P. 47

. 2 ( b )

. Delivered and filed the 21st day of Ju ly , 201 1

.

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 that was overruled by this Court. See T EX

. R. A PP

. 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 T EX

. R. A PP

. 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 T EX

. R. A PP

. P. 68.4.