David Luna v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: February 2, 2022
• Docket: 04-21-00003-CR
• Status: Published

Opinion

Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION

No. 04-21-00003-CR

David LUNA, Appellant

v.

The STATE of Texas, Appellee

From the 25th Judicial District Court, Guadalupe County, Texas Trial Court No. 13-1176-CR-B Honorable Gary L. Steel, Judge Presiding

Opinion by: Irene Rios, Justice

Sitting: Rebeca C. Martinez, Chief Justice Irene Rios, Justice Lori I. Valenzuela, Justice

Delivered and Filed: February 2, 2022

AFFIRMED AS MODIFIED; MOTION TO WITHDRAW GRANTED

Appellant David Luna appeals the trial court’s judgment revoking his community

supervision. Because we conclude this appeal is frivolous and without merit, we affirm the trial

court’s judgment and grant counsel’s motion to withdraw.

On May 23, 2016, Luna pled guilty to the offense of burglary of a habitation. The trial

court sentenced him to ten years in prison, suspended the sentence, and placed Luna on community

supervision for eight years. Thereafter, the State moved to revoke Luna’s community supervision. 04-21-00003-CR

On December 2, 2020, the trial court revoked Luna’s community supervision and imposed a ten-

year sentence.

On appeal, Luna’s court-appointed appellate counsel filed a brief stating he conducted a

professional evaluation of the record and determined there are no arguable grounds to be advanced

on Luna’s behalf. See Anders v. California, 386 U.S. 738, 744 (1967). With citations to the record

and legal authority, counsel explains why he concluded the appeal is without merit. Counsel states

he thoroughly reviewed the record in the underlying criminal proceeding, as well as the record of

the revocation hearing. The brief meets the requirements of Anders as it presents a professional

evaluation showing why there is no basis to advance an appeal. Id. at 744–45; Stafford v. State,

813 S.W.2d 503, 509–10, 510 n.3 (Tex. Crim. App. 1991); High v. State, 573 S.W.2d 807, 812–

13 (Tex. Crim. App. 1978).

Counsel provided Luna with copies of counsel’s Anders brief and motion to withdraw, a

motion for pro se access to the appellate record, and informed Luna of his right to review the

record, file his own brief, and seek discretionary review should this court conclude Luna’s appeal

is frivolous. See Kelly v. State, 436 S.W.3d 313, 319–20 (Tex. Crim. App. 2014); Nichols v. State,

954 S.W.2d 83, 85–86 (Tex. App.—San Antonio 1997, no pet.); Bruns v. State, 924 S.W.2d 176,

177 n.1 (Tex. App.—San Antonio 1996, no pet.). Thereafter, we set the deadline for Luna to file

a pro se brief. Luna did not file a pro se brief.

After reviewing the record and counsel’s Anders brief, we conclude there is no reversible

error and agree this appeal is frivolous and without merit. However, because the record shows

Luna is indigent and does not indicate a material change in his financial circumstances occurred,

we must modify the part of the judgment assessing court-appointed attorney’s fees against him.

See Cates v. State, 402 S.W.3d 250, 251 (Tex. Crim. App. 2013) (internal quotations omitted)

(“[A] defendant who is determined by the court to be indigent is presumed to remain indigent for

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the remainder of the proceedings in the case unless a material change in the defendant’s financial

circumstances occurs.”); Wilmurth v. State, 419 S.W.3d 553, 554–55 (Tex. App.—San

Antonio 2013, no pet.) (modifying judgment to delete assessment of attorney’s fees when

defendant is indigent). Accordingly, we modify the trial court’s judgment to delete the assessment

of attorney’s fees against Luna.

Our review also discloses a remedial error in the written judgment. The judgment

incorrectly states Luna pled “True” to the allegations in the State’s motion to revoke. Because the

written judgment does not accurately reflect the proceedings in the trial court, we modify the

judgment to change the “Plea to Motion to Revoke:” from “True” to “Not True.” See French v.

State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992) (stating appellate court is authorized to reform

the judgment to “make the record speak the truth”).

We grant the motion to withdraw filed by Luna’s counsel, modify the trial court’s

judgment, and affirm the judgment as modified. 1 See Nichols, 954 S.W.2d at 86; Bruns,

924 S.W.2d at 177 n.1.

Irene Rios, Justice

Do not publish

1 No substitute counsel will be appointed. Should Luna wish to seek further review of this case by the Texas Court of Criminal Appeals, Luna must either retain an attorney to file a petition for discretionary review or Luna must file a pro se petition for discretionary review. Any petition for discretionary review must be filed within thirty days from the later of: (1) the date of this opinion; or (2) the date the last timely motion for rehearing is overruled by this court. See TEX. R. APP. P. 68.2. Any petition for discretionary review must be filed with the Texas Court of Criminal Appeals. See TEX. R. APP. 68.3. Any petition for discretionary review should comply with the requirements of Rule 68.4 of the Texas Rules of Appellate Procedure. See TEX. R. APP. P. 68.4.

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