Armando Cubriel, Jr. v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: March 14, 2025
• Docket: 03-24-00293-CR
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-24-00293-CR

Armando Cubriel, Jr., Appellant

v.

The State of Texas, Appellee

FROM THE 22ND DISTRICT COURT OF HAYS COUNTY NO. CR-21-4965-A, THE HONORABLE SHERRI TIBBE, JUDGE PRESIDING

MEMORANDUM OPINION

Armando Cubriel, Jr., was charged with murder (Count I), intoxication

manslaughter with a vehicle (Count II), failure to render aid in a collision involving death

(Count III), tampering with evidence (Count IV), and retaliation (Count V). See Tex. Penal

Code §§ 19.02, 36.06, 37.09, 49.08; Tex. Transp. Code § 550.021. The indictment also

contained two alternative enhancement allegations asserting that Cubriel had been convicted of a

felony offense before committing the offenses at issue in this case. See Tex. Penal Code § 12.42.

Following a trial, the jury found the enhancement allegation to be true and found him guilty

of all five charged offenses. The State then moved to dismiss the intoxication-manslaughter

charge on double-jeopardy grounds. Following a punishment hearing, the jury assessed

Cubriel’s punishments at 75 years’ imprisonment for the murder and failure-to-render-aid

convictions, 15 years’ imprisonment for the tampering conviction, and 2 years’ imprisonment for the retaliation conviction. The trial court rendered its judgments of conviction consistent with

the jury’s verdicts. Cubriel appealed his convictions.

Cubriel’s court-appointed attorney on appeal filed a motion to withdraw

supported by an Anders brief contending that the appeal is frivolous and without merit. See

Anders v. California, 386 U.S. 738, 744-45 (1967). Cubriel’s court-appointed attorney’s brief,

which concludes that the appeal is frivolous and without merit, meets the requirements of Anders

by presenting a professional evaluation of the record and demonstrating that there are no

arguable grounds to be advanced. See id.; Garner v. State, 300 S.W.3d 763, 766 (Tex. Crim.

App. 2009); see also Penson v. Ohio, 488 U.S. 75, 81-82 (1988) (explaining that Anders briefs

serve purpose of “assisting the court in determining both that counsel in fact conducted the

required detailed review of the case and that the appeal is . . . frivolous”). Cubriel’s counsel

represented to the Court that he provided copies of the motion and brief to Cubriel; advised

Cubriel of his right to examine the appellate record, file a pro se brief, and pursue discretionary

review following the resolution of the appeal in this Court; and provided Cubriel with a form

motion for pro se access to the appellate record along with the mailing address of this Court.

See Kelly v. State, 436 S.W.3d 313, 319-20 (Tex. Crim. App. 2014). Cubriel has not requested a

copy of the appellate record or filed a pro se brief challenging his convictions, and the deadline

for filing a pro se brief has expired.

We have independently reviewed the record and considered appellate counsel’s

brief, and we have found nothing that might arguably support the appeal. See Anders, 386 U.S.

at 744; Garner, 300 S.W.3d at 766. We agree with counsel that the appeal is frivolous and

without merit. Accordingly, we grant counsel’s motion to withdraw.

2 Although Cubriel does not raise this on appeal, we observe that one of the

judgments of conviction contains a clerical error. The judgment for the retaliation conviction

reflects that the offense level for that offense was a second-degree felony. Although the

statute governing the offense specifies that retaliation can be a second-degree felony in two

circumstances, neither of those exceptions applies here. Tex. Penal Code § 36.06(c) (providing

that offense is second-degree felony when “the victim of the offense was harmed or threatened

because of the victim’s service or status as a juror”; or (2) actor publicly posts public servant’s

address or telephone number with intent to cause threat of harm and which “results in the bodily

injury of a public servant or a member of a public servant’s family or household”). In all other

instances, the offense is a third-degree felony. See id.

Accordingly, the offense in question here was a third-degree felony, and

consistent with that level, the punishment ranges for this offense listed in the jury charge were

for a third-degree felony and a third-degree felony enhanced by a prior felony conviction. See id.

§§ 12.33, .34, .42. Even though the punishment range was ultimately enhanced in this case

due to the jury’s finding of true regarding a prior felony conviction, see id. § 12.42, the actual

offense level for the retaliation offense did not change, see id. § 36.06(c); see also Ford v. State,

334 S.W.3d 230, 234 (Tex. Crim. App. 2011) (explaining that section 12.42 of Penal Code

“increases the punishment level only”).

This Court has the authority to modify incorrect judgments when it has the

information necessary to do so. See Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-

28 (Tex. Crim. App. 1993). Accordingly, we modify the judgment of conviction for retaliation

to reflect that Cubriel was convicted of a third-degree felony. See Bell v. State, No. 03-17-

00810-CR, 2018 WL 4177878, at *10 (Tex. App.—Austin Aug. 31, 2018, no pet.) (mem. op.,

3 not designated for publication) (correcting offense level in trial court’s judgment); see also

Grear v. State, No. 03-18-00787-CR, 2019 WL 5556836, at *1 (Tex. App.—Austin Oct. 29,

2019, no pet.) (mem. op., not designated for publication) (modifying judgment to correct clerical

error in Anders context).

Having found no nonfrivolous claims to be made on appeal, we affirm the trial

court’s judgments of conviction for murder, failure to render aid, and tampering with evidence.

Having found a clerical error in the trial court’s judgment of conviction for retaliation and having

modified the judgment to correct the error, we affirm that judgment as modified.

__________________________________________ Karin Crump, Justice

Before Justices Triana, Theofanis, and Crump

Count I Affirmed

Count III Affirmed

Count IV Affirmed

Count V Modified and, as Modified, Affirmed

Filed: March 14, 2025

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