Joshua Adan Lopez v. State

• Court: Court of Appeals of Texas
• Decided: April 21, 2016
• Docket: 01-14-00637-CR
• Status: Published

Opinion

Opinion issued April 21, 2016

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-14-00637-CR ——————————— JOSHUA ADAN LOPEZ, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from 184th District Court Harris County, Texas Trial Court Cause No. 1398810

MEMORANDUM OPINION Appellant, Joshua Adan Lopez, pleaded guilty to the second-degree felony

offense of aggravated assault with a deadly weapon, without an agreed punishment

recommendation from the State, pending a pre-sentence investigation (“PSI”) report.

See TEX. PENAL CODE ANN. § 22.02(a)(2), (b) (West Supp. 2015). Following a PSI report and hearing, the trial court assessed appellant’s punishment at ten years’

confinement on July 1, 2014. This sentence is within the applicable sentencing

range. See id. § 12.33(a) (West Supp. 2015). The trial court certified that this was

not a plea-bargain case, and that appellant had the right of appeal. See TEX. R. APP.

P. 25.2(a)(2). Appellant timely filed a notice of appeal and new counsel was

appointed.

Appellant’s appointed counsel has filed a motion to withdraw, along with an

Anders brief stating that the record presents no reversible error and that, therefore,

the appeal is without merit and is frivolous. See Anders v. California, 386 U.S. 738,

87 S. Ct. 1396 (1967). Counsel’s brief meets the Anders requirements by presenting

a professional evaluation of the record and supplying this Court with references to

the record and legal authority. See id. at 744, 87 S. Ct. at 1400; see also High v.

State, 573 S.W.2d 807, 812 (Tex. Crim. App. 1978). Counsel indicates that she has

thoroughly reviewed the record and that she is unable to advance any grounds of

error that warrant reversal. See Anders, 386 U.S. at 744, 87 S. Ct. at 1400; Mitchell

v. State, 193 S.W.3d 153, 155 (Tex. App.—Houston [1st Dist.] 2006, no pet.).

Appellant’s counsel has informed us that she has delivered a copy of the

motion to withdraw and Anders brief to appellant and informed him of his right to

file a response and to access the record. See In re Schulman, 252 S.W.3d 403, 408

(Tex. Crim. App. 2008). Furthermore, appellant’s counsel has informed us that she

2 also sent a copy of the record to appellant for his review. See Kelly v. State, 436

S.W.3d 313, 322 (Tex. Crim. App. 2014). Appellant has not filed any pro se

response to his counsel’s Anders brief.

We have independently reviewed the entire record in this appeal, and we

conclude that no reversible error exists in the record, that there are no arguable

grounds for review, and that therefore the appeal is frivolous. See Anders, 386 U.S.

at 744, 87 S. Ct. at 1400 (emphasizing that reviewing court—and not counsel—

determines, after full examination of proceedings, whether appeal is wholly

frivolous); Garner v. State, 300 S.W.3d 763, 767 (Tex. Crim. App. 2009) (reviewing

court must determine whether arguable grounds for review exist); Bledsoe v. State,

178 S.W.3d 824, 826–28 (Tex. Crim. App. 2005) (reviewing court is not to address

merits of each claim raised in Anders brief or pro se response after determining there

are no arguable grounds for review); Mitchell, 193 S.W.3d at 155. An appellant may

challenge a holding that there are no arguable grounds for appeal by filing a petition

for discretionary review in the Texas Court of Criminal Appeals. See Bledsoe, 178

S.W.3d at 827 n.6.

We note appellant’s counsel’s brief pointed out that the trial court’s judgment

erroneously contains the boilerplate language in the following special finding:

“APPEAL WAIVED. NO PERMISSION TO APPEAL GRANTED.” To the extent

appellant requests that we reform the judgment to remove this special finding, we

3 grant the request because the record supports the trial court’s certification that

appellant has the right of appeal because this was not a plea-bargain case. See

Alcaraz v. State, Nos. 01-14-00675-CR, 01-14-00676-CR, 2015 WL 7783512, at *1

(Tex. App.—Houston [1st Dist.] Dec. 3, 2015, pet. filed) (sustaining appellant’s

request to reform judgment to remove special finding of waiver of right to appeal

because he pleaded guilty without agreed recommendation and, thus, case was not

plea-bargain case) (citing, inter alia, French v. State, 830 S.W.2d 607, 609 (Tex.

Crim. App. 1992) (“[A]n appellate court has authority to reform a judgment . . . to

make the record speak the truth . . . .”)).

CONCLUSION

4 Accordingly, we affirm the judgment of the trial court, as modified to remove

the special finding that states “APPEAL WAIVED. NO PERMISSION TO

APPEAL GRANTED[,]” and grant counsel’s motion to withdraw. See TEX. R. APP.

P. 43.2(b).1 Attorney Cheri Duncan must immediately send the required notice and

file a copy of that notice with the Clerk of this Court. See TEX. R. APP. P. 6.5(c).

We dismiss any other pending motions as moot.

PER CURIAM Panel consists of Chief Justice Radack and Justices Keyes and Higley. Do not publish. TEX. R. APP. P. 47.2(b).

1 Appointed counsel still has a duty to inform appellant of the result of this appeal and that he may, on his own, pursue discretionary review in the Texas Court of Criminal Appeals. See Bledsoe, 178 S.W.3d at 826–27. 5