Gerardo Marquez v. State

Opinion issued May

26, 2011

In The

Court of Appeals

For The

First District of

Texas

NO. 01-10-00640-CR

____________

GERARDO MARQUEZ, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 337th District Court

Harris County, Texas

Trial Court Cause No. 629032

MEMORANDUM OPINION

A jury convicted appellant, Gerardo

Marquez, of the offense of murder and assessed punishment at confinement for

life and a fine of $10,000. Appellant’s

conviction was affirmed on appeal. Marquez v. State , No. 10-93-00101-CR (Tex.

App.—Waco, Sept. 13, 1995) (not published).

Subsequently, appellant filed a pro se motion for post-conviction DNA

testing. On June 10, 2010, the trial

court denied appellant’s motion for DNA testing. Appellant appealed.

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 frivolous. See Anders v. California , 386 U.S. 738 ,

87 S. Ct. 1396 (1967). We grant counsel’s

motion to withdraw and affirm the trial court’s judgment.

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.

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 grant the motion to

withdraw, 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 to appellant and informed him of his right to examine

the appellate record and to file a response.

See 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

in that it presents 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 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 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 , 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 affirm the trial court’s judgment

and grant counsel’s motion to withdraw.

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). Further,

although the trial court certified appellant’s right to appeal, the

certification does not include appellant’s signature, indicating that he has

been informed of his right to file a pro se petition for discretionary review, as

required by the Rules of Appellate Procedure.

See Tex. R. App. P. 25.2(d).

This defect was not remedied by appellant’s counsel. Therefore, pursuant Rule 48.4, we ORDER appellant’s appointed counsel 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 Tex. R. App. P. 48.4; Bledsoe , 178 S.W.3d at 826–27. Any other pending motions are dismissed as

moot.

PER CURIAM

Panel consists of Justices Jennings, Higley, and Brown.

Do not publish.

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