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Date: 09-17-2022

Case Style:

Rolando L. Olivia Rodriguez v. The State of Texas

Case Number: 01-20-00050-CR

Judge: Sarah Beth Landau

Court:

Court of Appeals For The First District of Texas

On appeal from the 182nd District Court of Harris County

Plaintiff's Attorney:


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Defendant's Attorney:

Houston, Texas – Criminal Defense lawyer represented defendant with a charge.

Description:

Houston, Texas – Criminal Defense lawyer represented defendant with appealing assault and continuing family violence charges.



In March 2018, appellant pleaded guilty to assault – continuing family
violence and was placed on deferred adjudication community supervision. In
December 2019, the State moved to adjudicate guilt, and appellant pleaded true to
violating the terms and conditions of his community supervision. In January 2020,
appellant filed a pro se letter stating that he believed he would be sentenced to five
years’ confinement, not nine years, and that his attorney at the time of his plea did
not speak Spanish well. Appellant appealed, and the trial court appointed appellate
counsel on appellant’s request.
In September 2020, we abated the appeal and remanded to the trial court to
determine whether appellant has the right to appeal. The appeal was reinstated in
April 2022, after we received a supplemental clerk’s record containing the trial
court’s certification of appellant’s right to appeal.
Anders Procedures
When appointed counsel believes a criminal defendant’s appeal is frivolous,
counsel may file both a motion to withdraw and an Anders brief. In re Schulman,
3
252 S.W.3d 403, 406 (Tex. Crim. App. 2008); see Anders, 386 U.S. at 741–42. An
Anders brief reflects the fact that counsel has adequately researched the case before
deciding to withdraw. In re Schulman, 252 S.W.3d at 407. It sets out counsel’s due
diligence, informs the client, and provides a roadmap for the appellate court’s review
of the record. Id. at 407. It also assists the client by providing citations to the record
if he wishes to exercise his right to file a pro se brief. Id. at 407–08. An Anders brief
is appropriate only when counsel has mastered the record and the evidence and
determines that there are no nonfrivolous grounds for appeal. Id. If counsel finds the
appeal involves potentially meritorious grounds, counsel must file a merits brief with
the court. Id. at 407 n.9; Stafford v. State, 813 S.W.2d 503, 509 (Tex. Crim. App.
1991).
If counsel determines that potential grounds for appeal exist but those grounds
would be frivolous, counsel must explain those grounds with citations to applicable
legal authority and pertinent evidence. In re Schulman, 252 S.W.3d at 407. Counsel
should “point out where pertinent testimony may be found in the record, refer to
pages in the record where objections were made, the nature of the objection, the trial
court’s ruling, and discuss either why the trial court’s ruling was correct or why the
appellant was not harmed by the ruling of the court.” High v. State, 573 S.W.2d 807,
813 (Tex. Crim. App. 1978). The purpose of this is to convince the appellate court
that counsel has given due consideration to any potential ground for appeal before
4
dismissing it as frivolous. See In re Schulman, 252 S.W.3d at 407–09 (appellate
courts will not grant motion to withdraw if Anders brief does not show record was
carefully reviewed); High, 573 S.W.2d at 811 (describing importance of disclosing
both legal authority and potential grounds for appeal).
Even when counsel believes that there are no grounds that might convince an
appellate court, counsel must still file an Anders brief, and it must direct the court to
the portions of the record that could have created error but did not. In re Schulman,
252 S.W.3d at 406–07. Counsel may not provide a mere conclusory statement that
no grounds for appeal exist. See id.; see also Anders, 386 U.S. at 742. If, after
conducting an independent review, the appellate court concludes that “appellate
counsel has exercised professional diligence in assaying the record for error” and
agrees the appeal is frivolous, it should grant counsel’s motion to withdraw, Meza v.
State, 206 S.W.3d 684, 689 (Tex. Crim. App. 2006), and affirm the trial court’s
judgment. In re Schulman, 252 S.W.3d at 409.
Here, counsel’s brief meets the Anders requirements by presenting a
professional evaluation of the record and supplying us with references to the record
and legal authority. See Anders, 386 U.S. at 74; see also High, 573 S.W.2d at 812.
Counsel has discussed why the record contains no reversible error. Counsel
specifically briefed: (1) ineffective assistance of counsel resulting in an involuntary
plea because the immigration admonishment did not contain any statement about the
5
effect of a plea of guilty to a felony family-violence offense; (2) ineffective
assistance of counsel because of a waiver of an interpreter when appellant entered
his plea; and (3) an unaddressed motion for new trial.
After appellate counsel moves to withdraw because an appeal is frivolous and
fulfills the Anders requirements, we must independently examine the record to see
if there is any arguable ground that might be raised on the appellant’s behalf.
Stafford, 813 S.W.2d at 511. When performing this evaluation, we consider the
record, the arguments raised in the Anders brief, and any issues that the appellant
might raise in a pro se brief. In re Schulman, 252 S.W.3d at 409. Only afterward
may we grant counsel’s motion to withdraw. See Penson v. Ohio, 488 U.S. 75, 82–
83 (1988).
We have scrutinized counsel’s Anders brief and independently reviewed the
entire record in this appeal. We conclude that no reversible error exists in the record,
there are no arguable grounds for review, and the appeal is frivolous. See Anders,
386 U.S. at 744 (reviewing court—not counsel—determines, after full examination
of record, whether arguable grounds for review exist); Bledsoe v. State, 178 S.W.3d
824, 827–28 (Tex. Crim. App. 2005) (reviewing court must determine whether
arguable grounds for review exist).
6

Outcome: Accordingly, we affirm the trial court’s judgment and grant counsel’s motion
to withdraw

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