Jose Montadelgado v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: May 11, 2021
• Docket: 05-20-00299-CR
• Status: Published

Opinion

GRANT; AFFIRMED as MODIFIED and Opinion Filed May 11, 2021

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-20-00299-CR

JOSE MONTADELGADO, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the Criminal District Court No. 5 Dallas County, Texas Trial Court Cause No. F-1953575-L

MEMORANDUM OPINION Before Justices Myers, Partida-Kipness, and Garcia Opinion by Justice Garcia A jury convicted appellant of indecency with a child and the court assessed

punishment at nine years in prison.

On appeal, appellant’s counsel has filed a brief in which he concludes the

appeal is frivolous and without merit. 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 (Tex. Crim. App. [Panel Op.] 1978) (determining

whether brief meets requirements of Anders). Counsel delivered a copy of the brief

to appellant. We advised appellant of his right to file a pro se response, but he did not file a pro se response. See Kelly v. State, 436 S.W.3d 313, 319–21 (Tex. Crim.

App. 2014) (noting appellant has right to file pro se response to Anders brief filed

by counsel).

Although not an arguable issue, counsel’s Anders brief notes a clerical error

in the trial court’s judgment and asks us to modify the judgment to correct the error.

Specifically, the judgment erroneously describes the case as a trial before the court,

but the case was tried to a jury and the court assessed punishment. We may correct

and modify the judgment of a trial court to make the record speak the truth when we

have the necessary data and information to do so. See 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); Davis v. State,

No. 01-02-00404-CR, 2003 WL 139655, at *1 (Tex. App.—Houston [1st Dist.] Jan.

9, 2003, no pet.) (mem. op., not designated for publication) (same). The record

supports the requested modification. Accordingly, we modify the judgment to reflect

that the case was tried to a jury and the court assessed punishment. TEX. R. APP. P.

43.2(b).

As required, appellant’s counsel has moved for leave to withdraw and has

provided appellant with a copy of the motion. See In re Schulman, 252 S.W.3d 403,

407 (Tex. Crim. App. 2008) (orig. proceeding). We carried the motion for

consideration with the merits.

2 Having modified the judgment to correct the clerical error counsel identified,

and having reviewed the record, we agree with counsel that this appeal is wholly

frivolous and without merit; we find nothing in the record before us that arguably

might support the appeal. See Bledsoe v. State, 178 S.W.3d 824, 827–28 (Tex. Crim.

App. 2005); see also Meza v. State, 206 S.W.3d 684, 685 n.6 (Tex. Crim. App.

2006). Accordingly, we grant counsel’s motion to withdraw, and affirm the trial

court’s judgment as modified. See Tex. R. App. P. 43.2(a), (b)

/Dennise Garcia/ DENNISE GARCIA JUSTICE Do Not Publish TEX. R. APP. P. 47.2(b) 200299F.U05

3 S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

JOSE MONTADELGADO, On Appeal from the Criminal District Appellant Court No. 5, Dallas County, Texas Trial Court Cause No. F19-53575-L. No. 05-20-00299-CR V. Opinion delivered by Justice Garcia. Justices Myers and Partida-Kipness THE STATE OF TEXAS, Appellee participating.

Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED to reflect that the case was tried to a jury and the court assessed punishment. As REFORMED, the judgment is AFFIRMED. Counsel’s motion to withdraw is GRANTED.

Judgment entered May 11, 2021