Richard Moreno Ortega, Jr. v. State
11-16-00333-CR
| Tex. App. | Jul 20, 2017Background
- Appellant Richard Moreno Ortega, Jr. pleaded guilty to first-degree felony possession of cocaine with intent to deliver in a drug-free zone; court assessed punishment and placed him on community supervision.
- The State filed a motion to revoke Ortega’s community supervision.
- At the revocation hearing Ortega pleaded true to three allegations; the trial court found two allegations true, revoked supervision, and imposed the original 10-year sentence and $1,000 fine.
- Court-appointed appellate counsel moved to withdraw and submitted an Anders-style brief concluding the appeal is frivolous and without merit. Counsel provided Ortega the record, brief, motion to withdraw, and advised him of his right to file a pro se response. Ortega did not file a response.
- The Court of Appeals independently reviewed the record under Anders/Schulman procedures and concluded the appeal is wholly frivolous. The court granted counsel’s motion to withdraw and dismissed the appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the appeal raises any non-frivolous grounds after counsel’s Anders brief | Ortega implicitly urges review of revocation and sentence | State contends revocation supported by pleas/findings and no reversible error | Court found no arguable grounds; appeal frivolous and dismissed |
| Whether counsel complied with Anders/Schulman procedural requirements | Counsel asserted he complied, provided records and notice to Ortega | N/A — Court must independently verify compliance | Court found counsel complied with Anders/Schulman and related Texas precedent |
| Whether remand for new counsel is required when an Anders brief is filed | Ortega could obtain appointed counsel if arguable issues exist | State supports dismissal if no arguable issues | Court found no arguable issues and did not remand; granted withdrawal and dismissed appeal |
| Whether Ortega was advised of right to seek discretionary review | Counsel and this court have duty to notify about PDR | N/A | Court noted counsel must advise and also advised Ortega of right to file PDR under Tex. R. App. P. 68 |
Key Cases Cited
- Anders v. California, 386 U.S. 738 (1967) (requires counsel to file brief identifying any arguable appellate issues when seeking withdrawal)
- In re Schulman, 252 S.W.3d 403 (Tex. Crim. App. 2008) (procedures for court review of Anders brief and pro se response)
- Kelly v. State, 436 S.W.3d 313 (Tex. Crim. App. 2014) (Texas authority on Anders-type appellate procedures)
- Bledsoe v. State, 178 S.W.3d 824 (Tex. Crim. App. 2005) (discusses appellate court options after Anders/Schulman review)