Manuel Martinez v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: September 6, 2023
• Docket: 05-22-00705-CR
• Status: Published

Opinion

AFFIRMED as MODIFIED and Opinion Filed September 6, 2023

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-22-00704-CR No. 05-22-00705-CR

MANUEL MARTINEZ, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 194th Judicial District Court Dallas County, Texas Trial Court Cause Nos. F09-72859-M, F12-71170-M

MEMORANDUM OPINION Before Justices Goldstein, Garcia, and Miskel Opinion by Justice Garcia Appellant was convicted of aggravated assault and possession of a controlled

substance and was sentenced to fifteen years in prison and confinement in the state

jail for six months respectively.

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. 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). Appellant responded but

presents no arguable grounds to advance.

The State agrees that there are no arguable issues on appeal, but notes that

there is an error in both judgments that should be corrected. Specifically, the

judgments list the sentence assessed by the trial court under the section “Terms of

Plea Bargain” but there was no plea bargain agreement or State recommendation as

to punishment in this case. 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 modifications.

Accordingly, we modify the judgments to delete the reference to the “Terms of Plea

Bargain.” 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,

–2– 407 (Tex. Crim. App. 2008) (orig. proceeding). We carried the motion for

consideration with the merits.

Having modified the judgments to correct the clerical error, 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

judgments 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) 220704F.U05

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

MANUEL MARTINEZ, Appellant On Appeal from the 194th Judicial District Court, Dallas County, Texas No. 05-22-00704-CR V. Trial Court Cause No. F-0972859-M. Opinion delivered by Justice Garcia. THE STATE OF TEXAS, Appellee Justices Goldstein and Miskel participating.

Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED to delete the reference to the “Terms of Plea Bargain.”

As REFORMED, the judgment is AFFIRMED.

Judgment entered September 6, 2023

–4– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

MANUEL MARTINEZ, Appellant On Appeal from the 194th Judicial District Court, Dallas County, Texas No. 05-22-00705-CR V. Trial Court Cause No. F-1271170-M. Opinion delivered by Justice Garcia. THE STATE OF TEXAS, Appellee Justices Goldstein and Miskel participating.

Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED to delete the reference to the “Terms of Plea Bargain.”

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