emphasizing that reviewing court—and not counsel— determines, after full examination of proceedings, whether appeal is wholly frivolous
How later courts described this case
- emphasizing that reviewing court—and not counsel— determines, after full examination of proceedings, whether appeal is wholly frivolous
- reviewing court determines whether arguable grounds exist by reviewing entire record
- explaining that frivolity is determined by considering whether there are “arguable grounds” for review
- reviewing court must determine whether arguable grounds for review exist
Written by the judges who cited it.
The opinion
Opinion issued May 5, 2015
In The
Court of Appeals
For The
First District of Texas
NO. 01-14-00172-CR
____________
PRAXEDIS VILLANUEVA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 412th District Court
Brazoria County, Texas
Trial Court Cause No. 69425
MEMORANDUM OPINION
Appellant, Praxedis Villanueva, pleaded not guilty to four counts of
aggravated sexual assault of a child. Trial was had to a jury. The jury found
Villanueva guilty on three of the four counts, and the jury assessed punishment at
thirty-three (33) years’ confinement in the Texas Department of Criminal Justice.
Appellant here appeals from the February 6, 2014 “Judgment of Conviction by
Jury.”
Appellant’s appointed counsel on appeal has filed a motion to withdraw,
along with an Anders brief stating that the record presents no reversible error and
therefore the appeal is without merit and is frivolous. See Anders v. California, 386
U.S. 738, 87 S. Ct. 1396 (1967).
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 744, 87 S. Ct. at 1400; see also High v. State,
573 S.W.2d 807, 812–13 (Tex. Crim. App. 1978). Counsel indicates that he has
thoroughly reviewed the record and that he is unable to advance any grounds of
error that warrant reversal. See Anders, 386 U.S. at 744, 87 S. Ct. at 1400; Mitchell
v. State, 193 S.W.3d 153, 155 (Tex. App.—Houston [1st Dist.] 2006, no pet.).
Counsel has informed us that he has delivered a copy of the brief to appellant
and informed him of his right to examine the appellate record and to file a response.
See In re Schulman, 252 S.W.3d 403, 408 (Tex. Crim. App. 2008). Appellant has
not filed a response.
2
We have independently reviewed the entire record in this appeal, and we
conclude that no reversible error exists in the record, that there are no arguable
grounds for review, and that therefore the appeal is frivolous. See Anders, 386 U.S.
at 744, 87 S. Ct. at 1400 (emphasizing that reviewing court—and not counsel—
determines, after full examination of proceedings, whether appeal is wholly
frivolous); Garner v. State, 300 S.W.3d 763, 767 (Tex. Crim. App. 2009)
(explaining that frivolity is determined by considering whether there are “arguable
grounds” for review); Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim. App.
2005) (reviewing court must determine whether arguable grounds for review exist);
Mitchell, 193 S.W.3d at 155 (reviewing court determines whether arguable grounds
exist by reviewing entire record). An appellant may challenge a holding that there
are no arguable grounds for appeal by filing a petition for discretionary review in
the Court of Criminal Appeals. See Bledsoe, 178 S.W.3d at 827 & n.6.
We note that the judgment includes attorney’s fees. There is no evidence in
the record to indicate Villanueva’s financial circumstances materially changed after
the trial court initially found him to be indigent and appointed counsel to represent
him. We conclude that the evidence is insufficient to support the order requiring
appellant to pay attorney’s fees for his court-appointed defense counsel. See Jones
v. State, 428 S.W.3d 163, 171–2 (Tex. App.—Houston [1st Dist.] 2014, no pet.).
3
Therefore, we modify the judgment to remove the assessment of $4,375.00 in
attorney’s fees.
We affirm the judgment of the trial court as modified and grant counsel’s
motion to withdraw.1 Attorney Perry Stevens must immediately send the notice
required by Texas Rule of Appellate Procedure 6.5(c) and file a copy of that notice
with the Clerk of this Court. See TEX. R. APP. P. 6.5(c).
PER CURIAM
Panel consists of Chief Justice Radack and Justices Brown and Lloyd.
Do not publish. TEX. R. APP. P. 47.2(b).
1
Appointed counsel still has a duty to inform appellant of the result of this appeal
and that he may, on his own, pursue discretionary review in the Texas Court of
Criminal Appeals. See Ex Parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App.
1997).
4