Frank Paul Celaya v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: July 19, 2021
• Docket: 05-18-00391-CR
• Status: Published

Opinion

Affirm and Opinion Filed July 19, 2021

In The Court of Appeals Fifth District of Texas at Dallas No. 05-18-00391-CR

FRANK PAUL CELAYA, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 291st Judicial District Court Dallas County, Texas Trial Court Cause No. F12-52876-U

MEMORANDUM OPINION Before Justices Myers, Partida-Kipness, and Garcia Opinion by Justice Myers Appellant Frank Paul Celaya was indicted for the offense of possession of

more than one gram but less than four grams of methamphetamine. He pleaded

guilty to the offense and was placed on deferred adjudication for five years and fined

$1,750. His community supervision was later extended by twelve months. The State

subsequently moved to revoke and proceed with an adjudication of guilt based on

grounds appellant violated certain terms of his community supervision, including

having committed the offense of assault. Appellant pleaded “not true” to the State’s

allegations and, following a hearing, the trial court found the allegations in the State’s motion to be true, revoked appellant’s community supervision, and sentenced

him to ten years in prison.

Appellant’s counsel has filed a motion to withdraw. The motion is supported

by a brief in which counsel professionally and conscientiously examines the record

and applicable law and concludes this appeal is frivolous and without merit.

Counsel certifies that she provided appellant with a copy of the brief and the

motion to withdraw. The brief meets the requirements of Anders v. California, 386

U.S. 738 (1967). The brief presents a professional evaluation of the record showing

why, in effect, there are no arguable grounds to advance. See High v. State, 573

S.W.2d 807, 812–13 (Tex. Crim. App. [Panel Op.] 1978) (determining whether brief

meets requirements of Anders); see also Arevalos v. State, 606 S.W.3d 912, 915–16

(Tex. App.—Dallas 2020, no pet.) (citing High and concluding Anders brief in

support of motion to withdraw did not meet requirements of Anders and was

deficient as to form). We advised appellant by letter of his right to file a pro se

response, but he has not filed a pro se response. See Kelly v. State, 436 S.W.3d 313,

319–21 (Tex. Crim. App. 2014) (appellant has right to file pro se response to Anders

brief filed by counsel).

We have reviewed the record and counsel’s brief. See Bledsoe v. State, 178

S.W.3d 824, 826–27 (Tex. Crim. App. 2005) (explaining appellate court’s duty in

Anders cases). We agree the appeal is frivolous and without merit, and we find

nothing in the record that might arguably support the appeal.

–2– Although not arguable issues, we note two clerical errors in the judgment

adjudicating guilt. The judgment incorrectly states, under “Plea to Motion to

Adjudicate,” that appellant pleaded “true” when the record shows he pleaded “not

true” to the State’s allegations. The judgment also incorrectly states that the “Terms

of Plea Bargain” were “10 Years TDCJ.”

When the record provides the necessary information to correct inaccuracies in

the trial court’s judgment, we have the authority to reform the judgment to speak the

truth. 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). Accordingly, we modify the judgment to reflect that, in the portion of

the judgment entitled “Plea to Motion to Adjudicate,” appellant pleaded “NOT

TRUE.” We also delete the reference in the judgment to “TEN YEARS TDCJ”

under “Term of Plea Bargain,” and change it to “N/A.”

Additionally, according to the record of the adjudication hearing, which

occurred on December 7, 2017, the trial court sentenced appellant to 10 years’

confinement, but then “order[ed]” him to “return” to court in six months, on June 6,

2018, for a hearing on whether to suspend the remainder of the sentence or allow

appellant to remain in TDCJ for the remainder of the ten-year sentence. See TEX.

CODE CRIM. PROC. art. 42A.202 (before expiration of 180-day period from the date

of the execution of the sentence, the trial court that imposed the sentence may, on

the court’s own motion, the motion of the attorney representing the State, or on

–3– written motion of the defendant, to suspend further execution of sentence and place

the defendant on community supervision, provided certain conditions are met). The

court advised appellant just after sentencing him, “That means you’re getting shock

probation.”1

The record on appeal does not reflect what happened on June 6, 2018,2 but the

court of criminal appeals has clarified that courts of appeals have authority to

entertain a defendant’s appeal from an order granting “shock” probation. See Shortt

v. State, 539 S.W.3d 321, 323, 324–25 (Tex. Crim. App. 2018) (recognizing that

statutory provision regarding appeal of placement on community supervision is

broad enough to accommodate an appeal of the conditions of probation imposed by

an order granting shock probation); see also Smith v. State, 559 S.W.3d 527, 536–

37 (Tex. Crim. App. 2018) (“The appeal of an order granting shock probation is

independent of an appeal from adjudication and sentencing. It is a separate appeal

of a separate appealable order, with its own appellate timetable. It requires a separate

notice of appeal.”). Thus, any issues arising from a decision by the trial court to

grant appellant “shock” probation are not before us in this appeal.

We grant counsel’s motion to withdraw and, as modified, affirm the judgment.

1 The trial court based its order on article 42.12 of the code of criminal procedure. As we have noted before, article 42.12 was repealed and replaced with Chapter 42A, effective January 1, 2017. See, e.g., Campos-Hernandez v. State, No. 05-19-01489-CR, 2021 WL 2070330, at *1 (Tex. App.—Dallas May 24, 2021, no pet. h.) (mem. op., not designated for publication). 2 The clerk’s record was filed on April 17, 2018, almost two months earlier.

–4– /Lana Myers// LANA MYERS JUSTICE

180391f.u05 Do Not Publish TEX. R. APP. P. 47.2(b)

–5– Court of Appeals Fifth District of Texas at Dallas JUDGMENT

FRANK PAUL CELAYA, Appellant On Appeal from the 291st Judicial District Court, Dallas County, Texas No. 05-18-00391-CR V. Trial Court Cause No. F12-52876-U. Opinion delivered by Justice Myers. THE STATE OF TEXAS, Appellee Justices Partida-Kipness and Garcia participating.

Based on the Court’s opinion of this date, the trial court’s judgment adjudicating guilt is MODIFIED as follows:

In the portion of the judgment entitled “Plea to Motion to Adjudicate,” “TRUE” is changed to “NOT TRUE.”

In the portion of the judgment entitled “Terms of Plea Bargain,” “10 YEARS TDCJ” is changed to “N/A.”

As REFORMED, the judgment is AFFIRMED.

Judgment entered this 19th day of July, 2021.

–6–