Anthony Prichinello v. The State of Texas

A San Patricio County grand jury indicted appellant Anthony Prichinello for

continuous sexual abuse of a young child, a first-degree felony. See TEX. PENAL CODE

ANN. § 21.02(b) (West, Westlaw through 2015 R.S.). Prichinello pleaded not guilty, was

tried by a jury, and ultimately found guilty as charged. The jury assessed Prichinello’s

punishment at eighty years’ imprisonment with the Texas Department of Criminal

Justice’s Institutional Division. This appeal followed. Prichinello’s court-appointed

counsel has filed an Anders brief. See Anders v. California, 386 U.S. 738, 744 (1967).

We affirm.



I. ANDERS BRIEF

Pursuant to Anders v. California, Prichinello’s court-appointed appellate counsel

has filed a brief and a motion to withdraw with this Court, stating that his review of the

record yielded no grounds of reversible error upon which an appeal can be predicated.

See id. Counsel’s brief meets the requirements of Anders as it presents a professional

evaluation demonstrating why there are no arguable grounds to advance on appeal.

See In re Schulman, 252 S.W.3d 403, 407 n.9 (Tex. Crim. App. 2008) (“In Texas, an

Anders brief need not specifically advance 'arguable' points of error if counsel finds none,

but it must provide record references to the facts and procedural history and set out

pertinent legal authorities.”) (citing Hawkins v. State, 112 S.W.3d 340, 343–44 (Tex.

App.—Corpus Christi 2003, no pet.)); Stafford v. State, 813 S.W.2d 503, 510 n.3 (Tex.

Crim. App. 1991).

In compliance with High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel

Op.] 1978) and Kelly v. State, 436 S.W.3d 313, 319–22 (Tex. Crim. App. 2014),

Prichinello’s counsel carefully discussed why, under controlling authority, there is no

reversible error in the trial court's judgment. Prichinello’s counsel has also informed this

Court that Prichinello has been (1) notified that counsel has filed an Anders brief and a

motion to withdraw; (2) provided with copies of both pleadings; (3) informed of his rights

to file a pro se response,1 review the record preparatory to filing that response, and seek

discretionary review if we concluded that the appeal is frivolous; and (4) provided with a

form motion for pro se access to the appellate record with instructions to file the motion

within ten days. See Anders, 386 U.S. at 744; Kelly, 436 S.W.3d at 319–20, Stafford,

813 S.W.2d at 510 n.3; see also In re Schulman, 252 S.W.3d at 409 n.23.

Prichinello requested and received a complete copy of the appellate record in his

case. On December 10, 2015, Prichinello filed a pro se response2 identifying three

issues, including: (1) whether his trial counsel was ineffective for failing to preserve error

regarding certain testimony regarding the complainant’s sexual assault exam; (2) whether

the evidence was legally sufficient to sustain his conviction; and (3) whether this Court

violates the Due Process or Equal Protection Clause of the U.S. Constitution when it does

not conduct a factual sufficiency analysis in criminal cases.

II. INDEPENDENT REVIEW

Upon receiving an Anders brief, we must conduct a full examination of all the

proceedings to determine whether the case is wholly frivolous. Penson v. Ohio, 488

U.S. 75, 80 (1988). A court of appeals has two options when an Anders brief and a

subsequent pro se response are filed. After reviewing the entire record, it may: (1)

The Texas Court of Criminal Appeals has held that “the pro se response need not comply with the rules of appellate procedure in order to be considered. Rather, the response should identify for the court those issues which the indigent appellant believes the court should consider in deciding whether the case presents any meritorious issues.” In re Schulman, 252 S.W.3d 403, 409 n.23 (Tex. Crim. App. 2008) (quoting Wilson v. State, 955 S.W.2d 693, 696–97 (Tex. App.—Waco 1997, no pet.)).

2 Prichinello also filed a motion to strike his appellate counsel’s Anders brief and allow himself to proceed pro se. We previously denied Prichinello’s motion to strike his appellate counsel’s brief, and today, we dismiss Prichinello’s motion to proceed pro se as moot. Additionally, the State filed a motion for extension of time to file its brief in this case. However, in light of our decision today finding no arguable issues on appeal, we dismiss the State’s motion for extension of time to file its brief as moot.

determine that the appeal is wholly frivolous and issue an opinion explaining that it finds

no reversible error; or (2) determine that there are arguable grounds for appeal and

remand the case to the trial court for appointment of new appellate counsel. Bledsoe v.

State, 178 S.W.3d 824, 826–27 (Tex. Crim. App. 2005). If the court finds arguable

grounds for appeal, it may not review those grounds until after new counsel has briefed

those issues on appeal. Id.

We have reviewed the entire record, counsel’s brief, and Prichinello’s response

independently, and we have found nothing that would arguably support an appeal. See

id. at 827–28 (“Due to the nature of Anders briefs, by indicating in the opinion that it

considered the issues raised in the briefs and reviewed the record for reversible error but

found none, the court of appeals met the requirement of Texas Rule of Appellate

Procedure 47.1.”); Stafford, 813 S.W.2d at 509. There is no reversible error in the

record.

III. MOTION TO WITHDRAW

In accordance with Anders, Prichinello’s attorney has asked this Court for

permission to withdraw as counsel for appellant. See Anders, 386 U.S. at 744; see also

In re Schulman, 252 S.W.3d at 408 n.17 (citing Jeffery v. State, 903 S.W.2d 776, 779–80

(Tex. App.—Dallas 1995, no pet.) (“[I]f an attorney believes the appeal is frivolous, he

must withdraw from representing the appellant. To withdraw from representation, the

appointed attorney must file a motion to withdraw accompanied by a brief showing the

appellate court that the appeal is frivolous.”) (citations omitted)). We grant counsel’s

motion to withdraw. Within five days of the date of this Court’s opinion, counsel is

ordered to send a copy of this opinion and this Court’s judgment to Prichinello and to



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advise him of his right to file a petition for discretionary review.3

We affirm the trial court’s judgment.