John Mason v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: June 13, 2024
• Docket: 08-23-00257-CR
• Status: Published

Opinion

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

JOHN MASON, § No. 08-23-00257-CR

Appellant, § Appeal from the

v. § 120th Judicial District Court

THE STATE OF TEXAS, § of El Paso County, Texas

Appellee. § (TC# 20220D02641)

MEMORANDUM OPINION

A jury convicted Appellant John Mason on two counts of aggravated assault with a deadly

weapon and sentenced him to 35 years imprisonment in the Texas Department of Criminal Justice

(TDCJ). See Tex. Penal Code Ann. § 22.02(a)(2). On appeal, Mason’s appointed counsel has filed

an Anders brief in support of a motion to withdraw. 1 We grant counsel’s motion and affirm the

judgment of the trial court.

BACKGROUND

Mason was indicted on two counts of aggravated assault with a deadly weapon, namely, a

knife, against two complaining witnesses. Additionally, in support of an enhanced sentence as to

both counts, the State alleged Mason had two prior felony convictions, one for injury to a child

1 Anders v. California, 386 U.S. 738, 744 (1967). and the other for assault on a police officer. The case proceeded to a jury trial where the State

presented evidence through the testimony of four witnesses and multiple exhibits, that included

surveillance videos, photographs, and a knife recovered from the scene. At the conclusion of the

guilt-innocence phase, the jury returned a verdict of guilty on both counts. After the punishment

phase, the jury found the allegations in each enhancement was true and assessed Mason’s

punishment as confinement in the TDCJ, Institutional Division, for a period of 35 years. The trial

court rendered a judgment of conviction in accordance with the jury’s verdict.

FRIVOLOUS APPEAL

Mason’s appointed appellate counsel filed an Anders brief and a motion to withdraw. With

citations to the record and legal authority, counsel’s brief contains a professional evaluation of the

record, explains why no arguable points of error exist for review, and concludes that this appeal is

frivolous and without merit. Anders v. California, 386 U.S. 738, 744–45 (1967); High v. State, 573

S.W.2d 807 (Tex. Crim. App. [Panel Op.] 1978). We conclude the brief meets the requirements of

Anders as it presents a professional evaluation showing why there is no basis to advance an appeal.

See Anders, 386 U.S. at 744–75; High, 573 S.W.2d at 812–13. Additionally, counsel provided

Mason with a copy of the brief, advised him of his right to examine the record and file a response,

and advised him of his right to seek discretionary review in the Texas Court of Criminal Appeals

should this Court conclude his appeal is frivolous. See Kelly v. State, 436 S.W.3d 313, 319–20

(Tex. Crim. App. 2014). Mason has not filed a pro se brief.

When this Court receives an Anders brief asserting no arguable grounds for appeal exist,

we must independently review the record to determine whether the appeal is frivolous. See Anders,

386 U.S. at 744; Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991) (en banc). We do

not review the merits of potential issues set out in the brief or raised in a pro se response but,

instead, determine whether there are any arguable grounds for reversal. Bledsoe v. State, 178

2 S.W.3d 824, 826–27 (Tex. Crim. App. 2005). If we conclude, after conducting an independent

review, that appellate counsel has made a thorough and conscientious examination of the record

and agree the appeal is frivolous, we must grant counsel’s motion to withdraw and affirm the trial

court’s judgment. In re Schulman, 252 S.W.3d 403, 408–09 (Tex. Crim. App. 2008); Meza v. State,

206 S.W.3d 684, 688–89 (Tex. Crim. App. 2006). Having reviewed the record and the Anders

brief, we conclude there are no arguable grounds for appeal and the appeal is wholly frivolous and

without merit. In re Schulman, 252 S.W.3d at 408–09. We affirm the trial court’s judgment and

grant appellate counsel’s motion to withdraw.

FURTHER REVIEW

No substitute counsel will be appointed. Through a retained attorney or by representing

himself, Mason may ask the Court of Criminal Appeals to review his case by filing a petition for

discretionary review. The petition must be filed with the clerk of the Court of Criminal Appeals

within 30 days from the date of either (1) this opinion or (2) the last timely motion for rehearing

or motion for en banc reconsideration is overruled by this court. See Tex. R. App. P. 68.2, 68.3(a).

The petition must also comply with Rule 68.4. See Tex. R. App. P. 68.4.

CLERICAL ERROR IN THE JUDGMENT

Through our review of the record, we discovered a clerical error in the trial court’s

judgment. We have the power to modify a judgment to speak the truth when we have the necessary

information to do so. Tex. R. App. P. 43.2(b); Ray v. State, No. 05-17-00820, 2018 WL 1149421,

at *2 (Tex. App.—Dallas Mar. 5, 2018, no pet.) (mem. op., not designated for publication)

(modifying judgment in Anders appeal).

The State alleged two enhancement paragraphs in the indictment. Mason pleaded not true

to both enhancements. In assessing punishment, the jury returned a finding of true as to both.

However, the two enhancement findings are not properly reflected in the judgment of conviction.

3 The judgment lists “TRUE” in the space next to “1st Enhancement Paragraph” and “TRUE” in the

space next to “Finding on 1st Enhancement Paragraph.” Then, the judgment lists “N/A” in the

space next to “2nd Enhancement Paragraph” and “N/A” in the space next to “Finding on 2nd

Enhancement Paragraph.”

Accordingly, we modify the judgment as follows: (1) replacing the language “TRUE” in

the space next to “1st Enhancement Paragraph” with “PLEADED NOT TRUE,” (2) replacing the

language “N/A” in the space next to “2nd Enhancement Paragraph” with “PLEADED NOT

TRUE,” and (3) replacing the language “N/A” in the space next to “Finding on 2nd Enhancement

Paragraph” with “TRUE.”

As modified, we affirm the trial court’s judgment.

CONCLUSION

Having modified the judgment to correct the clerical errors, and having reviewed the

record, we agree with appellant’s counsel that this appeal is wholly frivolous and without merit.

We grant counsel’s motion to withdraw and affirm the judgment of the trial court as modified.

Tex. R. App. P. 43.2 (b).

GINA M. PALAFOX, Justice

June 13, 2024

Before Alley, C.J., Palafox and Soto, JJ.

(Do Not Publish)