Opinion
03-24-00098-CR
08-15-2024
Jessie Rodriguez, Appellant v. The State of Texas, Appellee
Do Not Publish
FROM THE 35TH DISTRICT COURT OF MILLS COUNTY NO. 3700, THE HONORABLE MIKE SMITH, JUDGE PRESIDING
Before Chief Justice Byrne, Justices Triana and Kelly
MEMORANDUM OPINION
Chari L Kelly, Justice
Appellant Jessie Rodriguez pled guilty in an open plea to attempted aggravated sexual assault, a second-degree felony. See Tex. Penal Code §§ 15.01(b), 22.021(a)(1)(A). Following a punishment hearing, the trial court sentenced him to 20 years' confinement in the Texas Department of Criminal Justice-Institutional Division. See id. § 12.33.
Rodriguez's court-appointed appellate attorney has filed a motion to withdraw supported by an Anders brief contending that the appeal is frivolous and without merit. See Anders v. California, 386 U.S. 738, 744-45 (1967). The brief meets the requirements of Anders by presenting a professional evaluation of the record and demonstrating that there are no arguable grounds to be advanced. See id.; 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) (explaining that Anders briefs serve purpose of "assisting the court in determining both that counsel in fact conducted the required detailed review of the case and that the appeal is . . . frivolous").
Rodriguez's counsel has represented to the Court that he provided copies of the motion and brief to Rodriguez and that he advised Rodriguez of his right to examine the appellate record, file a pro se response, and pursue discretionary review following the resolution of the appeal in this Court. He also provided to Rodriguez a form motion for pro se access to the appellate record, lacking only Rodriguez's signature and the date, along with the mailing address for this Court. See Kelly v. State, 436 S.W.3d 313, 319-20 (Tex. Crim. App. 2014). To date, Rodriguez has not filed a request for the appellate record, a pro se response, or a motion for extension of time.
We have independently reviewed the record and have found nothing that might arguably support the appeal. See Anders, 386 U.S. at 744; Garner, 300 S.W.3d at 766. We agree with counsel that the record presents no arguably meritorious grounds for review and the appeal is frivolous.
We observe, however, that the judgment of conviction contains a non-reversible error. While the judgement correctly lists the offense for which the appellant was convicted as "attempted aggravated sexual assault," it incorrectly lists the applicable statute as Texas Penal Code "22.012." Section 22.012 defines the offense of indecent assault, not sexual assault, the offense at issue here. See Tex. Penal Code §§ 22.012, .021. This Court has authority to modify incorrect judgments when the necessary information is available 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). That authority to modify extends to judgments in Anders cases when the modification will not result in a reversal of the judgment. Brunson v. State, 03-22-00434-CR, 2023 Tex.App. LEXIS 5672, at *4 (Tex. App.- Austin Aug. 1, 2023, no pet.) (mem. op, not designated for publication). Accordingly, we modify the judgment of conviction to reflect that the "Statute for Offense" is "22.021 & 15.01, Penal Code."
The judgment also lists Section 15.01 of the Texas Penal Code, which establishes the degree of offense in which there is an aggravating element and in which the offense is attempted, but not completed. Tex. Penal Code § 15.01. We find that Section 15.01 correctly applies to the judgment.
We affirm the judgment of conviction, modified as described above, and grant counsel's motion to withdraw.
Modified and, as Modified, Affirmed