Felecia Rae Suetos v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: June 10, 2021
• Docket: 13-20-00374-CR
• Status: Published

Opinion

NUMBER 13-20-00374-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

FELECIA RAE SUETOS, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 36th District Court of San Patricio County, Texas.

MEMORANDUM OPINION

Before Justices Benavides, Hinojosa, and Silva Memorandum Opinion by Justice Silva

Appellant Felecia Rae Suetos appeals a judgment revoking her probation for

driving while intoxicated with a child under fifteen years old, a state jail felony. See TEX.

PENAL CODE ANN. § 49.045. The trial court sentenced Suetos to two years’ imprisonment.

Suetos’s court-appointed appellate counsel filed an Anders brief stating that there are no arguable grounds for appeal. See Anders v. California, 386 U.S. 738, 744 (1967). We

affirm as modified.

I. ANDERS BRIEF

Pursuant to Anders v. California, Suetos’s court-appointed appellate counsel 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) (orig. proceeding) (“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–Edinburg 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), Suetos’s

counsel carefully discussed why, under controlling authority, there is no reversible error

in the trial court’s judgment. Suetos’s counsel also informed this Court in writing that he

(1) notified Suetos that counsel filed an Anders brief and a motion to withdraw;

(2) provided Suetos with copies of both pleadings; (3) informed Suetos of her rights to file

a pro se response, to review the record prior to filing a response, and to seek discretionary

review in the Texas Court of Criminal Appeals if this Court finds that the appeal is

frivolous; and (4) provided Suetos with a form motion for pro se access to the appellate

2 record with instructions to sign and file the motion with the court of appeals within ten

days by mailing it to the address provided. 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. Suetos has been provided access to the appellate record. However, an

adequate time has passed, and Suetos has not filed a pro se response.

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). We have reviewed counsel’s brief and the entire record, and we have found

nothing that would support a finding of reversible error. See Bledsoe v. State, 178 S.W.3d

824, 827–28 (Tex. Crim. App. 2005) (“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.

III. MOTION TO WITHDRAW

In accordance with Anders, Suetos’s counsel asked this Court for permission to

withdraw as counsel. 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.)). 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

Suetos and to advise her of her right to file a petition for discretionary review. 1 See TEX.

1 No substitute counsel will be appointed. If Suetos seeks further review of this case by the Texas

Court of Criminal Appeals, she must either retain an attorney to file a petition for discretionary review or file

3 R. APP. P. 48.4; see also In re Schulman, 252 S.W.3d at 412 n.35; Ex parte Owens, 206

S.W.3d 670, 673 (Tex. Crim. App. 2006).

IV. JUDGMENT MODIFICATION

During our independent review of the record, we observed a clerical error in the

judgment, which states Suetos was found guilty and convicted under Texas Penal Code

§ 49.048(b). However, no such section exists in the Texas Penal Code. Rather, Suetos

was convicted under § 49.045(a), driving while intoxicated with a passenger who is

younger than fifteen years old, which is consistent with the indictment. See TEX. PENAL

CODE § 49.045(a).

We may modify incorrect judgments to make the record “speak the truth” when we

have the necessary data and information, and we may do so on our own motion. See

TEX. R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27–28 (Tex. Crim. App. 1993);

Asberry v. State, 813 S.W.2d 526, 529–30 (Tex. App.—Dallas 1991, pet. ref’d). We have

the power to modify whatever the trial court could have corrected by a judgment nunc pro

tunc when the information necessary to correct the judgment appears in the record. Ette

v. State, 551 S.W.3d 783, 792 (Tex. App.—Fort Worth 2017), aff’d, 559 S.W.3d 511 (Tex.

Crim. App. 2018). We conclude that the necessary information to correct the judgment

appears in the record. See id. Therefore, we modify the trial court’s judgment to reflect

that Suetos was convicted under Texas Penal Code § 49.045(a).

a pro se petition for discretionary review. Any petition for discretionary review must be filed within thirty days from the date of either this opinion or the last timely motion for rehearing or timely motion for en banc reconsideration that was overruled by this Court. See TEX. R. APP. P. 68.2. A petition for discretionary review must be filed with the clerk of the Court of Criminal Appeals. See id. R. 68.3. Any petition for discretionary review should comply with the requirements of Texas Rule of Appellate Procedure 68.4. See id. R. 68.4.

4 V. CONCLUSION

We affirm the trial court’s judgment as modified.

CLARISSA SILVA Justice

Do not publish. TEX. R. APP. P. 47.2(b).

Delivered and filed on the 10th day of June, 2021.