Michael Anthony Moreno v. State

Opinion issued July

7, 2011

In The

Court of Appeals

For The

First District of

Texas

NO. 01-10-00626-CR

____________

MICHAEL MORENO, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 338th District Court

Harris County, Texas

Trial Court Cause No. 952558

MEMORANDUM OPINION

Appellant, Michael Moreno, was

charged with the offense of burglary of a habitation, enhanced by two prior

felony convictions. Appellant pleaded

not guilty to the primary offense and pleaded “true” to the enhancements. A jury found appellant guilty and

affirmatively answered the special issue submitted on the use of a deadly

weapon. The trial court found the

enhancements true and assessed punishment at 45 years’ confinement. This court affirmed appellant’s conviction in

Moreno v. State , No. 01-04-00067-CR,

2005 WL 1910809 , at *7 (Tex. App.—Houston [1st Dist.] Aug. 11, 2005, no pet.). Subsequently, appellant moved for post-conviction

DNA testing. [1] The trial court denied the motion, and

appellant appealed.

Appellant’s 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). We affirm the trial court’s judgment and

grant counsel’s motion to withdraw.

An attorney has an ethical obligation

to refuse to prosecute a frivolous appeal. In re

Schulman , 252 S.W.3d 403, 407 (Tex.

Crim. App. 2008). If an appointed

attorney finds a case to be wholly frivolous, his obligation to his client is

to seek leave to withdraw. Id .

Counsel’s obligation to the appellate court is to assure it, through an Anders brief, that, after a complete

review of the record, the request to withdraw is well-founded. Id .

We may not grant the motion to

withdraw until:

(1) the

attorney has sent a copy of his Anders

brief to his client along with a letter explaining that the defendant has the

right to file a pro se brief within 30 days, and he has ensured that his client

has, at some point, been informed of his right to file a pro se [petition for

discretionary review];

(2) the

attorney has informed us that he has performed the above duties;

(3) the

defendant has had time in which to file a pro se response; and

(4) we

have reviewed the record, the Anders brief,

and any pro se brief.

See id. at

408–09.

If we agree that the appeal is wholly frivolous, we will grant the

attorney’s motion to withdraw and affirm the trial court’s judgment. See Garner v. State , 300 S.W.3d 763, 766

(Tex. Crim. App. 2009). If we conclude that arguable grounds for

appeal exist, we will abate the case and remand it to the trial court to

appoint new counsel to file a brief on the merits. See

Bledsoe v. State , 178 S.W.3d 824 , 826–27 (Tex. Crim. App. 2005).

Here, counsel’s brief reflects that

he delivered a copy of the brief and record to appellant, and the record

reflects that appellant was informed of his right to file a response. Schulman ,

252 S.W.3d at 408 . More than 30 days

have passed, and appellant has not filed a pro se brief. See id.

at 409 n.23 (adopting 30-day period for response).

Counsel’s

brief meets the Anders requirements

by presenting a professional evaluation of the record. See Anders , 386 U.S. at 744 , 87 S. Ct. at 1400 ; see also High v. State , 573 S.W.2d 807, 812

(Tex. Crim. App. 1978). Counsel

discusses the evidence adduced at the trial, supplies us with references to the

record, and provides us with citation to legal authorities. 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, 154 (Tex. App.—Houston [1st Dist.] 2006, no pet.).

We have independently reviewed the entire

record, 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 ; Garner , 300 S.W.3d at 767 (explaining that

frivolity is determined by considering whether there are “arguable grounds” for

review); Bledsoe , 178 S.W.3d at 826–27

(emphasizing that reviewing court—and not counsel—determines, after full

examination of proceedings, whether the appeal is wholly frivolous); Mitchell , 193 S.W.3d at 155 . Although we may issue an opinion explaining

why the appeal lacks arguable merit, we are not required to do so. See

Garner , 300 S.W.3d at 767 . 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 827 & n.6 .

We grant counsel’s motion to withdraw [2]

and affirm the trial court’s judgment. Attorney Bob Wicoff 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

Sharp and Brown.

Do not publish.

Tex. R. App. P. 47.2( b).

[1]

See Act of Apr. 3, 2001, 77th Leg., R.S., ch. 2, § 2, 2001 Tex. Gen. Laws 2 ,

3, amended by Act of May 24, 2007,

80th Leg., R.S., ch. 1006, § 4, 2007 Tex. Gen. Laws 3523 , 3524 (current version

at Tex. Code Crim. Proc. Ann. art.

64.03 (Vernon Supp. 2010)). The current version of article 64.03 applies to a

motion for DNA testing filed on or after September 1, 2007, the effective date

of the amendments. Here, appellant’s motion was filed on January 24, 2007.

Accordingly, we apply the former version of article 64.03 in this case .

[2]

Appointed

counsel still has a duty to inform appellant of the result of this appeal and

that appellant may, on his own, pursue discretionary review in the Texas Court

of Criminal Appeals. See Bledsoe v. State ,

178 S.W.3d 824 , 826–27 (Tex. Crim. App. 2005).