Jason Edward Pena v. the State of Texas

Opinion

Affirm and Opinion Filed August 31, 2023

In The

Court of Appeals

Fifth District of Texas at Dallas No. 05-22-01096-CR

JASON EDWARD PENA, Appellant V.

THE STATE OF TEXAS, Appellee

On Appeal from the County Court at Law No. 1 McLennan County, Texas

Trial Court Cause No. 2020-0945-CR1

MEMORANDUM OPINION

Before Justices Partida-Kipness, Reichek, and Miskel Opinion by Justice Miskel Jason Edward Pena appeals his conviction for misdemeanor theft, for which

the trial court assessed a twelve-month sentence and a $2,000 fine. See TEX. PENAL CODE ANN. § 31.03(e)(3). We affirm.

I. WE HAVE JURISDICTION The record reflects that Pena and his trial counsel signed a boilerplate form

waiving Pena’s right to appeal. However, on the same form, the trial court certified that Pena had the right to appeal, creating an apparent conflict. Pena did not enter a plea agreement with the State, and there was no record of any admonition by the trial

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court that Pena would be waiving his right to appeal. Just the opposite, Pena stated on the record that he wanted to appeal, and the trial court did not disabuse him of the notion that he was permitted to do so. And the State has not argued that the waiver deprives Pena of the right to appeal.

On similar facts, the Texas Court of Criminal Appeals held that a certification granting the right to appeal controlled over an inadvertent waiver of the right to appeal. See Thomas v. State, 408 S.W.3d 877, 887 (Tex. Crim. App. 2013); see also Willis v. State, 121 S.W.3d 400, 401–03 (Tex. Crim. App. 2003). In line with Thomas, we conclude we have jurisdiction over this appeal despite the apparently inadvertent waiver. See Burkley v. State, Nos. 05-21-00827-CR, 05-21-00828-CR, 2023 WL 2568923, at *3 (Tex. App.—Dallas Mar. 20, 2023, no pet.) (mem. op., not designated for publication).

II. THE APPEAL IS FRIVOLOUS Appointed counsel filed a motion to withdraw and a brief under Anders v.

California in which he stated that after thorough review, he has found no grounds for appeal with potential merit. 386 U.S. 738, 744–45 (1967). Counsel’s brief and motion meet the requirements of Anders by presenting a professional evaluation of the record demonstrating why there are no arguable grounds for relief. See Stafford v. State, 813 S.W.2d 503, 510 n.3 (Tex. Crim. App. 1991).

In compliance with Kelly v. State, counsel (1) notified Pena of his motion to withdraw; (2) provided him with copies of the motion, the brief, and the record; (3)

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informed him of his right to file a pro se response; and (4) informed him of his right to seek discretionary review should this court hold the appeal frivolous. See 436 S.W.3d 313, 319 (Tex. Crim. App. 2014). This court afforded Pena the opportunity to file a response, but he did not do so.

After appointed counsel files a motion to withdraw on the ground that an appeal is frivolous, we are obligated to undertake an independent examination of the record to determine whether there is any arguable ground that may be raised. See Stafford, 813 S.W.2d at 511. Only then may we grant counsel’s motion to withdraw. See Penson v. Ohio, 488 U.S. 75, 82–83 (1988).

After review, we agree that the appeal is frivolous and without merit. We find nothing in the record that might arguably support an appeal. We grant counsel’s motion to withdraw and affirm the judgment.

221096f.u05 /Emily Miskel/ Do not publish. EMILY MISKEL Tex. R. App. P. 47.2(b). JUSTICE

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Court of Appeals

Fifth District of Texas at Dallas JUDGMENT

JASON EDWARD PENA, Appellant On Appeal from the County Court at Law No 1, McLennan County, Texas No. 05-22-01096-CR V. Trial Court Cause No. 2020-0945-

CR1.

THE STATE OF TEXAS, Appellee Opinion delivered by Justice Miskel.

Justices Partida-Kipness and Reichek participating.

Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered this 31st day of August, 2023.