Robert Espinosa, Jr. v. State

Opinion

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

NO. 02-12-00634-CR NO. 02-12-00635-CR NO. 02-12-00636-CR

ROBERT ESPINOSA, JR. APPELLANT

V.

THE STATE OF TEXAS STATE

----------

FROM THE 432ND DISTRICT COURT OF TARRANT COUNTY

MEMORANDUM OPINION1

A jury convicted Appellant Robert Espinosa, Jr. of aggravated assault with

a deadly weapon (a firearm) in three cases: trial court cause number 1234023D

(our case number 02-12-00636-CR), trial court cause number 1234027D (our

case number 02-12-00635-CR), and trial court cause number 1234029D (our

1 See Tex. R. App. P. 47.4. case number 02-12-00634-CR). See Tex. Penal Code Ann. § 22.02(a)(2) (West

2011). After finding the habitual offender allegation in each indictment to be true,

the jury assessed his punishment at twenty-five years’ imprisonment, life

imprisonment, and fifty years’ imprisonment, respectively. The trial court

sentenced him accordingly, ordering that the sentences run concurrently.

Espinosa’s court-appointed appellate counsel has filed a motion to

withdraw as counsel and a brief in support of that motion for each case.

Counsel’s brief and motion meet the requirements of Anders v. California2 by

presenting a professional evaluation of the records demonstrating why there are

no arguable grounds for relief. This court afforded Espinosa the opportunity to

file a brief on his own behalf, and he has done so. The State has informed us via

letter that it would not file a brief.

As the reviewing court, we must conduct an independent evaluation of the

records to determine whether counsel is correct in determining that the appeals

are frivolous. See Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App.

1991); Mays v. State, 904 S.W.2d 920, 923 (Tex. App.—Fort Worth 1995, no

pet.). Only then may we grant counsel’s motions to withdraw. See Penson v.

Ohio, 488 U.S. 75, 82–83, 109 S. Ct. 346, 351 (1988).

We have carefully reviewed the records, counsel's brief, and Espinosa’s

brief. We find one clerical error in the judgment in each case. All three

2 386 U.S. 738, 87 S. Ct. 1396 (1967).

2 indictments contain habitual offender notices, alleging prior convictions for

aggravated robbery with a deadly weapon (a firearm) from January 2, 2007, and

for aggravated assault with a deadly weapon (a knife) from November 29, 2000.

At the punishment stage of trial, when the trial court asked how Espinosa

pleaded to the habitual offender notice in each case, Espinosa stood mute. The

trial court instructed the jury, both on the record and in the jury charge on

punishment, to treat Espinosa’s standing moot as pleas of not true. However,

the written judgment in each case states that Espinosa pleaded true to the

habitual offender notice.3

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, or to

make any appropriate order as the law and nature of the case may require. See

Alexander v. State, 301 S.W.3d 361, 364 (Tex. App.—Fort Worth 2009, no pet.)

(modifying judgment in Anders appeal). Accordingly, we modify the judgment of

conviction in each case to reflect that Espinosa entered a plea of “Not True” to

the “Habitual Paragraph.” See id.; Bray v. State, 179 S.W.3d 725, 729–30 (Tex.

App.—Fort Worth 2005, no pet.) (en banc) (holding that appellate courts have

authority to reform judgments in Anders appeals and to affirm judgments as

reformed); see also Britton v. State, No. 02-10-00299-CR, 2011 WL 4345288, at

*1 (Tex. App.—Fort Worth Sept. 15, 2011, no pet.) (mem. op., not designated for

3 The written judgment in each case correctly states that the jury made a finding of “True” to the habitual offender notice.

3 publication) (modifying judgment in Anders appeal to reflect proper plea), pet.

struck, No. PD-1911-11, 2012 WL 836362 (Tex. Crim. App. Mar. 7, 2012).

Except for the necessary modifications to the judgments, we agree with

counsel that these appeals are wholly frivolous and without merit; we find nothing

else in the records or Espinosa’s brief that arguably might support an appeal.

See Bledsoe v. State, 178 S.W.3d 824, 827–28 (Tex. Crim. App. 2005).

Accordingly, we grant counsel’s motions to withdraw and affirm the trial court’s

judgments as modified. See Tex. R. App. P. 43.2(b).

PER CURIAM

PANEL: WALKER, MEIER, and GABRIEL, JJ.

DO NOT PUBLISH Tex. R. App. P. 47.2(b)

DELIVERED: February 20, 2014