Opinion
No. 10-19-00211-CR No. 10-19-00212-CR
11-27-2019
ALEJANDRO MUNOZ, Appellant v. THE STATE OF TEXAS, Appellee
From the 85th District Court Brazos County, Texas
Trial Court Nos. 18-00145-CRF-85; and 19-01830-CRF-85
MEMORANDUM OPINION
In one plea hearing and one sentencing hearing, Alejandro Munoz made an open plea of guilty to the court and was convicted of two separate offenses: evading arrest or detention with a previous conviction and assault family violence with previous convictions. See TEX. PENAL CODE ANN. §§ 38.04(b)(1); 22.01(b)(2)(A). He was sentenced to 10 years and 13 years, respectively, in prison. The sentences were ordered to run concurrently.
Munoz's appellate attorney filed a motion to withdraw and an Anders brief in support of the motion to withdraw in each case, asserting that the appeals present no issues of arguable merit. See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967). Counsel advised Munoz that counsel had filed the motion and brief pursuant to Anders and provided Munoz a copy of the record, advised Munoz of his right to review the record, and advised Munoz of his right to submit a response on his own behalf. Munoz did not submit a response.
Counsel asserts in the Anders brief that counsel has made a thorough review of the entire record, including the sufficiency of the indictments, any pretrial rulings, compliance with necessary admonishments, Munoz's competency, the sufficiency of the open pleas of guilty, the waiver of a presentence investigation report, the punishment, and the effectiveness of counsel. After the review, counsel has concluded there is no non-frivolous issue to raise in these appeals. Counsel's brief evidences a professional evaluation of the record for error, and we conclude that counsel performed the duties required of appointed counsel. See Anders, 386 U.S. at 744; High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. 1978); see also In re Schulman, 252 S.W.3d 403, 407 (Tex. Crim. App. 2008).
Upon the filing of an Anders brief, as the reviewing appellate court, it is our duty to independently examine the record to decide whether counsel is correct in determining that an appeal is frivolous. See Anders, 386 U.S. at 744; Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991). Arguments are frivolous when they "cannot conceivably persuade the court." McCoy v. Court of Appeals, 486 U.S. 429, 436, 108 S. Ct. 1895, 100 L. Ed. 2d 440 (1988).
Having carefully reviewed the entire record, the Anders brief, and Munoz's response, we have determined that these appeals are frivolous. See Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005). We note, however, that costs were assessed in both judgments of conviction. Where allegations and evidence of more than one offense are presented in a single trial or plea proceeding, the trial court errs in assessing costs in each conviction. Hurlburt v. State, 506 S.W.3d 199, 203-204 (Tex. App.—Waco 2016, no pet.). Based on our precedent, abatement to the trial court for the appointment of new counsel is not required. See Ferguson v. State, 435 S.W.3d 291 (Tex. App.—Waco 2014, pet. dism.). Because this error does not impact the determination of guilt or punishment and, therefore, does not result in a reversal of either judgment, we may modify one of the judgments to correct the erroneous assessment of costs. Id. Accordingly, the Judgment of Conviction by Court—Waiver of Jury Trial in trial court case number 19-01830-CRF-85 is modified to delete the assessed court costs. We affirm the trial court's Judgment of Conviction by Court—Waiver of Jury Trial in trial court case number 19-01830-CRF-85 as modified and affirm the trial court's Judgment of Conviction by Court—Waiver of Jury Trial in trial court case number 18-00145-CRF-85.
Should Munoz wish to seek further review of these cases by the Texas Court of Criminal Appeals, he must either retain an attorney to file a petition for discretionary review or must file a pro se petition for discretionary review. No substitute counsel will be appointed. Any petition for discretionary review must be filed within thirty days from the date of this opinion or the last timely motion for rehearing or timely motion for en banc reconsideration has been overruled by this Court. See TEX. R. APP. P. 68.2. Any petition and all copies of the petition for discretionary review must be filed with the Clerk of the Court of Criminal Appeals. See TEX. R. APP. P. 68.3. (Tex. Crim. App. 1997, amended eff. Sept. 1, 2011). Any petition for discretionary review should comply with the requirements of Rule 68.4 of the Texas Rules of Appellate Procedure. See TEX. R. APP. P. 68.4. See also In re Schulman, 252 S.W.3d at 409 n.22.
Counsel's motions to withdraw from representation of Munoz are granted, and counsel is discharged from representing Munoz. Notwithstanding counsel's discharge, counsel must send Munoz a copy of our decision, notify him of his right to file a pro se petition for discretionary review, and send this Court a letter certifying counsel's compliance with Texas Rule of Appellate Procedure 48.4. TEX. R. APP. P. 48.4; see also In re Schulman, 252 S.W.3d at 409 n.22.
TOM GRAY
Chief Justice Before Chief Justice Gray, Justice Davis, and Justice Neill
Affirmed
Affirmed as modified
Opinion delivered and filed November 27, 2019
Do not publish
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