Ruben Alejandro Moreno-Muriel v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: October 6, 2022
• Docket: 05-21-01092-CR
• Status: Published

Opinion

AFFIRMED as MODIFIED and Opinion Filed October 6, 2022

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-21-01091-CR No. 05-21-01092-CR No. 05-21-01093-CR No. 05-21-01094-CR No. 05-21-01095-CR RUBEN ALEJANDRO MORENO-MURIEL, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 204th Judicial District Court Dallas County, Texas Trial Court Cause Nos. F20-00535-Q, F20-82003-Q, F20-82004-Q, F17-41680-Q, F17-10464-Q

MEMORANDUM OPINION Before Justices Schenck, Reichek, and Goldstein Opinion by Justice Reichek Ruben Alejandro Moreno-Muriel appeals his convictions for five offenses:

aggravated assault with a deadly weapon, manufacture/delivery of a controlled

substance, credit card abuse, and two criminal violations of the motor-fuel-tax

provisions of the Texas Tax Code. In 2019, appellant pleaded guilty to the first two

offenses and, pursuant to a plea bargain agreement, was sentenced to a five-year

term of deferred adjudication community supervision for each offense. In 2020,

appellant was indicted for the remaining three offenses. The State moved to adjudicate appellant’s guilt of the assault and controlled substance offenses based,

in part, on his commission of the new offenses.

In 2021, appellant pleaded guilty to the new offenses without the benefit of a

plea agreement. Appellant additionally pleaded true to the motions to adjudicate. A

consolidated trial before the court without a jury was conducted on the issue of

punishment. After hearing the evidence, the trial court sentenced appellant to two

years in prison for the credit card abuse offense and ten years in prison for each of

the remaining offenses. All five sentences were ordered to run concurrently.

On appeal, appellant’s court-appointed appellate counsel has filed a brief in

which she concludes there are no arguable points of error and the appeal is wholly

frivolous and without merit. She has also filed an accompanying motion to withdraw

as appointed counsel. When an appellate court receives an Anders brief asserting no

arguable grounds for appeal exist, we must determine that issue independently by

conducting our own review of the record. See Anders v. California, 386 U.S. 738,

744 (1967) (emphasizing that the reviewing court, and not appointed counsel,

determines, after full examination of proceedings, whether the case is “wholly

frivolous”); Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991)

(quoting Anders). If we conclude, after conducting an independent review, that

“appellate counsel has exercised professional diligence in assaying the record for

error” and agree the appeal is frivolous, we should grant counsel’s motion to

withdraw and affirm the trial court’s judgment. In re Schulman, 252 S.W.3d 403,

–2– 409 (Tex. Crim. App. 2008); Meza v. State, 206 S.W.3d 684, 689 (Tex. Crim. App.

2006).

The brief before us meets the requirements of Anders. It presents a

professional evaluation of the record showing why 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). We advised

appellant by letter of his right to file a pro se response and appellant did not file a

response. See Kelly v. State, 436 S.W.3d 313, 319–21 (Tex. Crim. App. 2014)

(appellant has right to file pro se response to Anders brief filed by counsel).

Although not an arguable issue, the State notes the trial court’s judgments in

two of the causes do not accurately reflect the statute for the offense of which

appellant was convicted. This Court has the power to modify a judgment to make

the record speak the truth when we have the necessary information before us to do

so. See TEX. R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 28 (Tex. Crim. App.

1993); Asberry v. State, 813 S.W.2d 526, 529–30 (Tex. App.–Dallas 1991, pet.

ref’d). Accordingly, we modify the trial court’s judgments in the following manner:

in trial court cause number F20-82003-Q, the “Statute for Offense” portion of the

judgment is modified to state “162.403(34), 162.405(e) Tax Code” and in trial court

cause number F20-82004-Q the “Statute for Offense” portion of the judgment is

modified to state “162.403(31), 162.405(e) Tax Code.” We grant counsel’s motion

to withdraw and, as reformed, we affirm the trial court’s judgments.

–3– /Amanda L. Reichek/ AMANDA L. REICHEK JUSTICE

Do Not Publish TEX. R. APP. P. 47.2(b)

211091F.U05

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

RUBEN ALEJANDRO MORENO- On Appeal from the 204th Judicial MURIEL, Appellant District Court, Dallas County, Texas Trial Court Cause No. F20-00535-Q. No. 05-21-01091-CR V. Opinion delivered by Justice Reichek. Justices Schenck and THE STATE OF TEXAS, Appellee Goldstein participating.

Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered October 6, 2022

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

RUBEN ALEJANDRO MORENO- On Appeal from the 204th Judicial MURIEL, Appellant District Court, Dallas County, Texas Trial Court Cause No. F20-82003-Q. No. 05-21-01092-CR V. Opinion delivered by Justice Reichek. Justices Schenck and THE STATE OF TEXAS, Appellee Goldstein participating.

Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED as follows:

The “Statute for Offense” portion of the judgment is MODIFIED to state “162.403(34), 162.405(e) Tax Code.”

As REFORMED, the judgment is AFFIRMED.

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

RUBEN ALEJANDRO MORENO- On Appeal from the 204th Judicial MURIEL, Appellant District Court, Dallas County, Texas Trial Court Cause No. F20-82004-Q. No. 05-21-01093-CR V. Opinion delivered by Justice Reichek. Justices Schenck and THE STATE OF TEXAS, Appellee Goldstein participating.

Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED as follows:

The “Statute for Offense” portion of the judgment is MODIFIED to state “162.403(31), 162.405(e) Tax Code.”

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

RUBEN ALEJANDRO MORENO- On Appeal from the 204th Judicial MURIEL, Appellant District Court, Dallas County, Texas Trial Court Cause No. F17-41680-Q. No. 05-21-01094-CR V. Opinion delivered by Justice Reichek. Justices Schenck and THE STATE OF TEXAS, Appellee Goldstein participating.

Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

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

RUBEN ALEJANDRO MORENO- On Appeal from the 204th Judicial MURIEL, Appellant District Court, Dallas County, Texas Trial Court Cause No. F17-10464-Q. No. 05-21-01095-CR V. Opinion delivered by Justice Reichek. Justices Schenck and THE STATE OF TEXAS, Appellee Goldstein participating.

Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

–9–