AFFIRMED AS MODIFIED and Opinion Filed September 23, 2022
S In The Court of Appeals Fifth District of Texas at Dallas No. 05-21-00995-CR No. 05-21-01076-CR
MARTIN DAVILACONTRERAS, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 265th Judicial District Court Dallas County, Texas Trial Court Cause Nos. F-2141090-R and F-2141089-R
MEMORANDUM OPINION
Before Justices Myers, Pedersen, III, and Garcia Opinion by Justice Garcia
Appellant Martin Davilacontreras pleaded guilty without plea-bargain
agreements to two offenses: the third-degree felony of evading arrest or detention
with a motor vehicle and the first-degree felony of possession with intent to deliver
cocaine in an amount of at least four but less than two hundred grams. After a
hearing, the trial judge found him guilty of both offenses and sentenced him to five
years’ imprisonment for each offense, to be served concurrently. Appellant timely
appealed. Appellant’s court-appointed attorney has filed a brief in which she concludes
that this appeal is wholly frivolous and without merit. Counsel also filed a motion to
withdraw in which she states that she sent copies of the record, the brief, and the
motion to appellant. Appellant was advised of his right to file a pro se response, but
he did not file a response.
Under these circumstances, we must conduct our own review of the record
and independently determine whether any arguable grounds for appeal exist. See
Anders v. California, 386 U.S. 738, 744 (1967). If we conclude that counsel has
exercised professional diligence in reviewing the record for error and agree that the
appeal is frivolous, we should grant counsel’s motion to withdraw and affirm the
trial court’s judgment. See In re Schulman, 252 S.W.3d 403, 409 (Tex. Crim. App.
2008) (orig. proceeding).
Counsel’s brief presents a professional evaluation of the record showing why
there are no arguable grounds to advance on appeal. We conclude it meets the
requirements of Anders. See High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App.
[Panel Op.] 1978) (discussing minimum requirements for Anders briefs).
In a letter brief, the State agrees that there are no arguable issues for reversal
but identifies an error that appellant’s counsel overlooked—the trial judge failed to
orally admonish appellant about the possible negative effects a guilty plea could
have under immigration law. See TEX. CODE CRIM. PROC. ANN. art. 26.13(a)(4), (d),
(d-1) (requiring this admonishment to be delivered orally and in writing).
–2– Nevertheless, the State argues, and we agree, that this error does not present an
arguable issue. The record shows that appellant is a United States citizen, so any
failure to admonish him about the immigration consequences of his guilty pleas is
harmless error. See VanNortrick v. State, 227 S.W.3d 706, 709 (Tex. Crim. App.
2007) (“[W]hen the record shows a defendant to be a United States citizen, the trial
court’s failure to admonish him on the immigration consequences of his guilty plea
is harmless error.”). Thus, the error does not present an arguable issue. See Thurman
v. State, No. 05-20-00790-CR, 2021 WL 4958993, at *1 & n.1 (Tex. App.—Dallas
Oct. 26, 2021, no pet.) (mem. op., not designated for publication) (concluding that
appeal was frivolous even though trial court committed the same error on essentially
the same facts). 1
Having reviewed the record and counsel’s brief, we conclude that nothing in
the record might arguably support the appeal and that the appeal is frivolous.
1 We limit our holding to the facts presented in this case: if the record affirmatively shows that a defendant is a United States citizen, the trial judge’s erroneous failure to give an oral admonishment about immigration consequences does not present an arguable issue that makes an Anders brief inappropriate. We distinguish our recent decision in Jessie v. State, in which we struck an Anders brief for failure to discuss several potential errors appearing in the record, only one of which was failure to give an immigration- consequences admonishment. No. 05-20-00995-CR, 2022 WL 1164657, at *2–3 (Tex. App.—Dallas Apr. 20, 2022, order) (mem. op., not designated for publication) (also noting a defect in an indictment and multiple errors in the judgments). And we distinguish this case from those in which the admonishment is not given and the defendant’s citizenship does not appear on the face of the record. See Gist v. State, No. 07-08-0030-CR, 2009 WL 1577968, at *1–2 (Tex. App.—Amarillo June 5, 2009, order) (per curiam) (mem. op., not designated for publication) (requiring rebriefing because trial judge did not give immigration- consequences admonishment), disp. on merits, 2009 WL 3320203 (Tex. App.—Amarillo Oct. 14, 2009, no pet.) (mem. op., not designated for publication) (affirming conviction because, although original appellate record was silent as to defendant’s citizenship, supplemental record showed that he was a United States citizen). –3– The State asks us to correct certain errors in the judgments that do not present
arguable issues. We have the power to do so. See, e.g., Blais v. State, No. 05-20-
00556-CR, 2021 WL 2010269, at *2–3 (Tex. App.—Dallas May 20, 2021, no pet.)
(mem. op., not designated for publication) (correcting errors after concluding that
appeal was frivolous).
First, the State calls our attention to two errors in the cocaine-possession
judgment. That judgment identifies the “Offense for which Defendant Convicted”
as “POSSESSION OF A CONTROLLED SUBSTANCE WITH INTENT TO
DELIVER TO WIT; COCAINE,” but it should identify the offense as
“POSSESSION OF A CONTROLLED SUBSTANCE WITH INTENT TO
DELIVER, TO WIT: COCAINE, IN AN AMOUNT OF 4 GRAMS OR MORE
BUT LESS THAN 200 GRAMS.” And the judgment identifies the “Statute for
Offense” as “481.112 Health and Safety Code,” but it should identify the statute as
“481.112(d) Health and Safety Code.” We modify the judgment to correct both
errors. See TEX. R. APP. P. 43.2(b).
Second, both judgments assess court costs against appellant in the amount of
$290. The State asserts that this violates Texas Code of Criminal Procedure Article
102.073. We agree and accordingly delete the assessment from the evading-arrest
–4– judgment. See Blais, 2021 WL 2010269, at *3 (granting similar relief after
concluding appeal was frivolous).2
We grant counsel’s motion to withdraw, modify the judgments as discussed
above, and affirm the judgments as modified.
/Dennise Garcia/ DENNISE GARCIA JUSTICE
Do Not Publish Tex. R. App. P. 47.2(b) 210995F.U05
2 We have held that the erroneous inclusion in the judgment of a fine that was not orally pronounced presents an arguable issue that must be raised in a proper brief on the merits. Torres v. State, No. 05-01- 00338-CR, 2002 WL 89385, at *1 (Tex. App.—Dallas Jan. 24, 2002, order) (per curiam) (not designated for publication), disp. on merits, 2002 WL 1603201 (Tex. App.—Dallas July 22, 2002, no pet.) (not designated for publication). But court costs are different from fines—court costs are not part of the sentence, and they need not be orally pronounced. See Johnson v.
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AFFIRMED AS MODIFIED and Opinion Filed September 23, 2022
S In The Court of Appeals Fifth District of Texas at Dallas No. 05-21-00995-CR No. 05-21-01076-CR
MARTIN DAVILACONTRERAS, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 265th Judicial District Court Dallas County, Texas Trial Court Cause Nos. F-2141090-R and F-2141089-R
MEMORANDUM OPINION
Before Justices Myers, Pedersen, III, and Garcia Opinion by Justice Garcia
Appellant Martin Davilacontreras pleaded guilty without plea-bargain
agreements to two offenses: the third-degree felony of evading arrest or detention
with a motor vehicle and the first-degree felony of possession with intent to deliver
cocaine in an amount of at least four but less than two hundred grams. After a
hearing, the trial judge found him guilty of both offenses and sentenced him to five
years’ imprisonment for each offense, to be served concurrently. Appellant timely
appealed. Appellant’s court-appointed attorney has filed a brief in which she concludes
that this appeal is wholly frivolous and without merit. Counsel also filed a motion to
withdraw in which she states that she sent copies of the record, the brief, and the
motion to appellant. Appellant was advised of his right to file a pro se response, but
he did not file a response.
Under these circumstances, we must conduct our own review of the record
and independently determine whether any arguable grounds for appeal exist. See
Anders v. California, 386 U.S. 738, 744 (1967). If we conclude that counsel has
exercised professional diligence in reviewing the record for error and agree that the
appeal is frivolous, we should grant counsel’s motion to withdraw and affirm the
trial court’s judgment. See In re Schulman, 252 S.W.3d 403, 409 (Tex. Crim. App.
2008) (orig. proceeding).
Counsel’s brief presents a professional evaluation of the record showing why
there are no arguable grounds to advance on appeal. We conclude it meets the
requirements of Anders. See High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App.
[Panel Op.] 1978) (discussing minimum requirements for Anders briefs).
In a letter brief, the State agrees that there are no arguable issues for reversal
but identifies an error that appellant’s counsel overlooked—the trial judge failed to
orally admonish appellant about the possible negative effects a guilty plea could
have under immigration law. See TEX. CODE CRIM. PROC. ANN. art. 26.13(a)(4), (d),
(d-1) (requiring this admonishment to be delivered orally and in writing).
–2– Nevertheless, the State argues, and we agree, that this error does not present an
arguable issue. The record shows that appellant is a United States citizen, so any
failure to admonish him about the immigration consequences of his guilty pleas is
harmless error. See VanNortrick v. State, 227 S.W.3d 706, 709 (Tex. Crim. App.
2007) (“[W]hen the record shows a defendant to be a United States citizen, the trial
court’s failure to admonish him on the immigration consequences of his guilty plea
is harmless error.”). Thus, the error does not present an arguable issue. See Thurman
v. State, No. 05-20-00790-CR, 2021 WL 4958993, at *1 & n.1 (Tex. App.—Dallas
Oct. 26, 2021, no pet.) (mem. op., not designated for publication) (concluding that
appeal was frivolous even though trial court committed the same error on essentially
the same facts). 1
Having reviewed the record and counsel’s brief, we conclude that nothing in
the record might arguably support the appeal and that the appeal is frivolous.
1 We limit our holding to the facts presented in this case: if the record affirmatively shows that a defendant is a United States citizen, the trial judge’s erroneous failure to give an oral admonishment about immigration consequences does not present an arguable issue that makes an Anders brief inappropriate. We distinguish our recent decision in Jessie v. State, in which we struck an Anders brief for failure to discuss several potential errors appearing in the record, only one of which was failure to give an immigration- consequences admonishment. No. 05-20-00995-CR, 2022 WL 1164657, at *2–3 (Tex. App.—Dallas Apr. 20, 2022, order) (mem. op., not designated for publication) (also noting a defect in an indictment and multiple errors in the judgments). And we distinguish this case from those in which the admonishment is not given and the defendant’s citizenship does not appear on the face of the record. See Gist v. State, No. 07-08-0030-CR, 2009 WL 1577968, at *1–2 (Tex. App.—Amarillo June 5, 2009, order) (per curiam) (mem. op., not designated for publication) (requiring rebriefing because trial judge did not give immigration- consequences admonishment), disp. on merits, 2009 WL 3320203 (Tex. App.—Amarillo Oct. 14, 2009, no pet.) (mem. op., not designated for publication) (affirming conviction because, although original appellate record was silent as to defendant’s citizenship, supplemental record showed that he was a United States citizen). –3– The State asks us to correct certain errors in the judgments that do not present
arguable issues. We have the power to do so. See, e.g., Blais v. State, No. 05-20-
00556-CR, 2021 WL 2010269, at *2–3 (Tex. App.—Dallas May 20, 2021, no pet.)
(mem. op., not designated for publication) (correcting errors after concluding that
appeal was frivolous).
First, the State calls our attention to two errors in the cocaine-possession
judgment. That judgment identifies the “Offense for which Defendant Convicted”
as “POSSESSION OF A CONTROLLED SUBSTANCE WITH INTENT TO
DELIVER TO WIT; COCAINE,” but it should identify the offense as
“POSSESSION OF A CONTROLLED SUBSTANCE WITH INTENT TO
DELIVER, TO WIT: COCAINE, IN AN AMOUNT OF 4 GRAMS OR MORE
BUT LESS THAN 200 GRAMS.” And the judgment identifies the “Statute for
Offense” as “481.112 Health and Safety Code,” but it should identify the statute as
“481.112(d) Health and Safety Code.” We modify the judgment to correct both
errors. See TEX. R. APP. P. 43.2(b).
Second, both judgments assess court costs against appellant in the amount of
$290. The State asserts that this violates Texas Code of Criminal Procedure Article
102.073. We agree and accordingly delete the assessment from the evading-arrest
–4– judgment. See Blais, 2021 WL 2010269, at *3 (granting similar relief after
concluding appeal was frivolous).2
We grant counsel’s motion to withdraw, modify the judgments as discussed
above, and affirm the judgments as modified.
/Dennise Garcia/ DENNISE GARCIA JUSTICE
Do Not Publish Tex. R. App. P. 47.2(b) 210995F.U05
2 We have held that the erroneous inclusion in the judgment of a fine that was not orally pronounced presents an arguable issue that must be raised in a proper brief on the merits. Torres v. State, No. 05-01- 00338-CR, 2002 WL 89385, at *1 (Tex. App.—Dallas Jan. 24, 2002, order) (per curiam) (not designated for publication), disp. on merits, 2002 WL 1603201 (Tex. App.—Dallas July 22, 2002, no pet.) (not designated for publication). But court costs are different from fines—court costs are not part of the sentence, and they need not be orally pronounced. See Johnson v. State, 423 S.W.3d 385, 389, 390 (Tex. Crim. App. 2014). Accordingly, we follow Blais and correct the error without ordering rebriefing. –5– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT
MARTIN DAVILACONTRERAS, On Appeal from the 265th Judicial Appellant District Court, Dallas County, Texas Trial Court Cause No. F-2141090-R. No. 05-21-00995-CR V. Opinion delivered by Justice Garcia. Justices Myers and Pedersen, III THE STATE OF TEXAS, Appellee participating.
Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED as follows:
• the field labeled “Offense for which Defendant Convicted” is modified to read as follows: “POSSESSION OF A CONTROLLED SUBSTANCE WITH INTENT TO DELIVER, TO WIT: COCAINE, IN AN AMOUNT OF 4 GRAMS OR MORE BUT LESS THAN 200 GRAMS” and
• the field labeled “Statute for Offense” is modified to read as follows: “481.112(d) Health and Safety Code.”
As REFORMED, the judgment is AFFIRMED.
Judgment entered September 23, 2022.
–6– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT
MARTIN DAVILACONTRERAS, On Appeal from the 265th Judicial Appellant District Court, Dallas County, Texas Trial Court Cause No. F-2141089-R. No. 05-21-01076-CR V. Opinion delivered by Justice Garcia. Justices Myers and Pedersen, III THE STATE OF TEXAS, Appellee participating.
Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED as follows:
The assessment of $290 for court costs is deleted.
–7–