Opinion
05-22-00089-CR
01-24-2023
JOE RICHARD CORTEZ, Appellant v. THE STATE OF TEXAS, Appellee
Do Not Publish Tex.R.App.P. 47.2(b)
On Appeal from the 15th Judicial District Court Grayson County, Texas Trial Court Cause No. 074010
Before Justices Molberg, Reichek, and Breedlove
MEMORANDUM OPINION
AMANDA L. REICHEK JUSTICE
Joe Richard Cortez was charged in a nineteen-count indictment with continuous sexual abuse of a young child (Count 1), nine counts of aggravated sexual assault of a child (Counts 2-7 and 14-16), and nine counts of sexual assault of a child (Counts 8-13 and 17-19). Six of the aggravated sexual assault counts were lesser included offenses of the continuous sexual abuse count. The offenses were committed between 2002 and 2015 against three children. Appellant pleaded not guilty. After hearing the evidence, a jury convicted appellant of continuous sexual abuse, nine counts of sexual assault of a child, and three counts of aggravated sexual assault of a child. The trial court assessed punishment at 80 years' confinement for continuous sexual abuse and for each of the aggravated sexual assault offenses and at 20 years' confinement for each of the sexual assault offenses.
On appeal, appellant's court-appointed attorney filed a brief in which he concluded the appeal is wholly frivolous and without merit. He 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 court, and not appointed counsel, determines whether case is "frivolous" after full examination of proceedings); Stafford v. State, 813 S.W.2d 503, 510-11 (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. Crowe v. State, 595 S.W.3d 317, 319 (Tex. App.-Dallas 2020, no pet.) (quoting Meza v. State, 206 S.W.3d 684, 689 (Tex. Crim. App. 2006)); see In re Schulman, 252 S.W.3d 403, 409 (Tex. Crim. App. 2008).
The brief before us meets the requirements of Anders. It presents a professional evaluation of the record showing why, in effect, there were no arguable grounds to advance. See High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. [Panel Op.] 1978). Appellant was provided a complete record and advised of his rights to file a pro se response. He did not file a response.
We have reviewed the record and counsel's brief. See Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005) (explaining appellate court's duty in Anders cases). We agree the appeal is frivolous and without merit, and we find nothing in the record that might arguably support the appeal.
Although not an arguable issue, the trial court's judgment does not accurately reflect that the trial court assessed punishment in this case. The record shows that appellant elected for the trial judge to assess his punishment, and the judge did so. 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, 27-28 (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 judgment to reflect that the trial court, not the jury, assessed punishment.
We grant counsel's motion to withdraw and affirm the trial court's judgment as modified.
JUDGMENT
Based on the Court's opinion of this date, the judgment of the trial court is MODIFIED as follows:
On the first page of the judgment, the section titled "Punishment Assessed by:" is modified to state "Court."
On the second page of the judgment, the section titled "Punishment Assessed by Jury/Court/No election (select one)" is modified to uncheck the box next to "Jury" and to check the box next to "Court."
As modified, the judgment is AFFIRMED.
Judgment entered
Justices Molberg and Breedlove participating.