Rolando Ibarra v. State

IN THE TENTH COURT OF APPEALS No. 10-06-00049-CR Rolando Ibarra, Appellant v. The State of Texas, Appellee From the 52nd District Court Coryell County, Texas Trial Court No. FDWI-03-16960 Opinion We withdraw the memorandum opinion and judgment issued in this appeal on August 30, 2006 and substitute this opinion in its place. Rolando Ibarra was convicted of the felony offense of driving while intoxicated and was placed on community supervision. The trial court revoked his community supervision and sentenced him to 8 years in prison. Ibarra appeals. Ibarra's counsel filed an Anders brief. See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967). We affirm. In the brief, counsel asserts that she reviewed the complete reporter’s and clerk’s records in search of potentially meritorious grounds of error on appeal. Counsel concludes that the appeal is frivolous. Although counsel informed Ibarra of the right to file a brief, Ibarra did not file a brief. The State did not file a response. We must, "after a full examination of all the proceedings, . . . decide whether the case is wholly frivolous." Anders, 386 U.S. at 744; accord Stafford v. State, 813 S.W.2d 503, 509-11 (Tex. Crim. App. 1991); Coronado v. State, 996 S.W.2d 283, 285 (Tex. App.—Waco 1999, order) (per curiam), disp. on merits, 25 S.W.3d 806 (Tex. App.—Waco 2000, pet. ref'd). An appeal is "wholly frivolous" or "without merit" when it "lacks any basis in law or fact." McCoy v. Court of Appeals, 486 U.S. 429, 439 n.10, 108 S. Ct. 1895, 100 L. Ed. 2d 440 (1988). Arguments are frivolous when they "cannot conceivably persuade the court." Id. at 436. An appeal is not wholly frivolous when it is based on "arguable grounds." Stafford, 813 S.W.2d at 511. We determine that the appeal is wholly frivolous. Accordingly, we affirm. Ibarra may request the Court of Criminal Appeals to review this decision by filing a petition for discretionary review with this Court within 30 days after the date of this opinion. Tex. R. App. P. 68.2(a). In accordance with this Court’s opinion in Sowels v. State, 45 S.W.3d 690 (Tex. App.—Waco 2001, no pet.), overruled in part by, Meza v. State, No. PD-1181-05, 2006 Tex. Crim. App. LEXIS 1822, *14 (Tex. Crim. App. Sept. 20, 2006), appellate counsel moved the trial court to allow counsel to withdraw from the representation of Ibarra on appeal. The motion to withdraw was granted. On this issue, Sowels was based on our decision in Enriquez v. State, wherein we held that only the appointing court has the authority to allow appointed counsel to withdraw from representing an indigent party. Id. at 692; Enriquez v. State, 999 S.W.2d 906, 908 (Tex. App.—Waco 1999, no pet.). Upon further review of our decision in Sowels, we determined that an Anders brief on appeal with an accompanying motion to withdraw is an exception to the rule announced in Enriquez, and that an appellate court could, under those circumstances, allow counsel to withdraw from representation of the defendant. Pippillion v. State, 186 S.W.3d 694 (Tex. App.—Waco 2006, order); see also Bledsoe v. State, 178 S.W.3d 824 (Tex. Crim. App. 2005). Recently, relying on Ex parte Wilson, the Court of Criminal appeals granted an out of time petition for discretionary review and reiterated that appellate counsel, even though discharged from further duties to the defendant after the filing of an Anders brief must, nevertheless, inform the defendant of the opportunity to file a petition for discretionary review. Ex Parte Owens, No. AP-74,996, 2006 Tex. Crim. App. LEXIS 1691 (Tex. Crim. App. Sept. 13, 2006); Ex parte Wilson, 956 S.W.2d 25 (Tex. Crim. App. 1997); see Tex. R. App. P. 68.2(a). Accordingly, we remind counsel of the duty to inform Ibarra of his right to file a petition for discretionary review even though she has been allowed to withdraw as counsel. TOM GRAY Chief Justice Before Chief Justice Gray, Justice Vance, and Justice Reyna Affirmed Opinion and judgment issued August 30, 2006 withdrawn Opinion delivered and filed October 11, 2006 Publish [CR25] .5in;line-height:200%'>Let us examine the issue from a different perspective, literally. Should the result in this appeal be different if the struggle occurred on the porch or in the yard rather than in the hall? I think not. But under the majority’s analysis, if they struggled on the porch or in the yard, then the conviction stands; but if the same struggle occurs in the hall, it does not? That seems terribly illogical. Let us examine the issue from yet another perspective, literally. The perspective is from that of the house. Oh, if only walls could talk. If the house could tell us how it felt about it I have no doubt that it would say, “Let us not forget that the bullet came to rest in my wall.” There is no indication that it came to rest there as a result of a ricochet. Because bullets tend to leave the gun from which they were fired in a straight line, the location of where the bullet stopped is all but conclusive evidence that the gun was pointed “at” the wall, a part of the house, when it was discharged. So from the perspective of the habitation: “Not only did Reed shoot at me, he hit me!” Based upon the foregoing, I conclude that the jury was well within the bounds of being rational when it determined, based upon the evidence, that Reed discharged “a firearm at or in the direction of a habitation.” From the jury’s perspective, Reed could hardly have missed. I dissent. TOM GRAY Chief Justice Dissenting opinion delivered and filed December 20, 2006 Publish