Roberto Ochoa, Jr. v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: June 17, 2025
• Docket: 03-24-00067-CR
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-24-00067-CR

Roberto Ochoa, Jr., Appellant

v.

The State of Texas, Appellee

FROM THE 483RD DISTRICT COURT OF HAYS COUNTY NO. CR-20-0093-D, THE HONORABLE TANNER NEIDHARDT, JUDGE PRESIDING

MEMORANDUM OPINION

Appellant Roberto Ochoa, Jr. was charged with possession of cocaine—in an

amount of four grams or more but fewer than 200 grams—with intent to deliver. See Tex.

Health & Safety Code § 481.102(3)(D), .112(a). A jury found him guilty of the lesser-included

offense of possession of a controlled substance. See id. § 481.115(a), (d); Tex. Code Crim. Proc.

art. 37.09. The trial court accepted the jury’s finding of guilt and assessed Ochoa’s punishment,

enhanced under the Texas Penal Code’s habitual-offender provision, at sixty-eight years’

confinement. See Tex. Health & Safety Code § 481.115(d); Tex. Penal Code § 12.42(d).

Appellant’s court-appointed attorney has filed a motion to withdraw supported by

a brief concluding that the appeal is frivolous and without merit. The brief meets the

requirements of Anders v. California by presenting a professional evaluation of the record

demonstrating why there are no arguable grounds to be advanced. See 386 U.S. 738, 744 (1967); Garner v. State, 300 S.W.3d 763, 766 (Tex. Crim. App. 2009); see also Penson v. Ohio,

488 U.S. 75, 81–82 (1988). Appellant’s counsel has also certified to the Court that he sent

copies of the motion and brief to appellant; informed him of his right to examine the appellate

record and file a pro se response; and provided him with a motion to assist him in obtaining the

record. See Kelly v. State, 436 S.W.3d 313, 319–20 (Tex. Crim. App. 2014); see also Anders,

386 U.S. at 744. To date, no pro se response has been filed.

We have conducted an independent review of the record, including the record of

the trial and sentencing proceedings below and appellate counsel’s brief, and find no reversible

error. See Anders, 386 U.S. at 744; Garner, 300 S.W.3d at 766; Bledsoe v. State, 178 S.W.3d 824,

826–27 (Tex. Crim. App. 2005). Nevertheless, while reviewing the record, we found a

typographical error in the judgment of conviction, which gave the “Statute for Offense” as

“481.115(d) Penal Code.”

The appropriate remedy is to modify the trial court’s judgment to reflect the

correct statute. See Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27–28 (Tex. Crim.

App. 1993). Accordingly, we modify the judgment in trial court cause number CR-20-0093-D to

reflect that the “Statute for Offense” was “481.115(a), (d) Health & Safety Code.”

We agree with counsel that the record presents no arguably meritorious grounds

for review, and the appeal is frivolous. Counsel’s motion to withdraw is granted.

Having modified the trial court’s judgment in cause number CR-20-0093-D as set

out above, we affirm the judgment of conviction as modified.

2 __________________________________________ Rosa Lopez Theofanis, Justice

Before Justices Theofanis, Crump, and Ellis

Modified and, as Modified, Affirmed

Filed: June 17, 2025

Do Not Publish