Edward Rodriguez v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: March 22, 2023
• Docket: 09-21-00225-CR
• Status: Published

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

________________ NO. 09-21-00225-CR ________________

EDWARD RODRIGUEZ, Appellant

V.

THE STATE OF TEXAS, Appellee

________________________________________________________________________

On Appeal from the 435th District Court Montgomery County, Texas Trial Cause No. 18-11-15694-CR ________________________________________________________________________

MEMORANDUM OPINION

Edward Rodriguez was convicted by a jury of evading arrest or detention with

the use of a motor vehicle, and after the trial court found him guilty of committing

two prior felonies, the judge sentenced him to 40 years in the Institutional Division

of the Texas Department of Criminal Justice. See Tex. Penal Code Ann. §§ 38.04(a),

38.04(b)(2). We affirm.

1 Rodriguez’s appellate counsel filed an Anders brief that presents counsel’s

professional evaluation of the record and concludes the appeal is frivolous; he then

filed a motion to withdraw as counsel. See Anders v. California, 386 U.S. 738

(1967); High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978). Rodriguez was

notified of his right to file a pro se brief, and he did so on January 6, 2023. The Court

of Criminal Appeals has held that we need not address the merits of issues raised in

an Anders brief or pro se response. Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex.

Crim. App. 2005). Rather, an appellate court may determine: (1) “that the appeal is

wholly frivolous and issue an opinion explaining that it has reviewed the record and

finds no reversible error[;]” or (2) “that arguable grounds for appeal exist and remand

the cause to the trial court so that new counsel may be appointed to brief the issues.”

Id.

We have reviewed the appellate record and Appellant’s pro se response, and

we agree with counsel’s conclusion that no arguable issues support an appeal.

Therefore, we find it unnecessary to order appointment of new counsel to re-brief

the appeal. Cf. Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991). We

note, however, that the trial court’s judgment contains a clerical error because it

incorrectly states that Rodriguez was charged and convicted of an offense under

section 38.04(b)(1) of the Texas Penal Code, whereas the jury’s verdict reflects that

he was convicted of a violation of section 38.04(b)(2). See Tex. Penal Code Ann. §§

2 38.04(b)(1), 38.04(b)(2). This Court has the authority to modify the trial court’s

judgment to correct clerical errors. 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 trial court’s

judgment to reflect that Rodriguez was convicted of violating section 38.04(b)(2) of

the Penal Code. We affirm the trial court’s judgment as modified.1

AFFIRMED AS MODIFIED.

________________________________ JAY WRIGHT Justice

Submitted on February 28, 2023 Opinion Delivered March 22, 2023 Do Not Publish

Before Golemon, C.J., Horton and Wright, JJ.

1 Rodriguez may challenge our decision in this case by filing a petition for discretionary review. See Tex. R. App. P. 68. 3