Joseph Arreola v. State

Opinion issued May 5, 2015

In The

Court of Appeals

For The

First District of Texas

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NO. 01-14-00558-CR

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JOSEPH ARREOLA, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 175th District Court

Bexar County, Texas

Trial Court Case No. 2012CR4258

MEMORANDUM OPINION

Appellant, Joseph Arreola, pleaded no contest to the felony offense of

aggravated assault. See TEX. PENAL CODE ANN. § 22.02(a)(1) (West 2011). In

accordance with appellant’s plea-bargain agreement with the State, the trial court

found sufficient evidence to find appellant guilty, but deferred making any finding

regarding appellant’s guilt and placed appellant on community supervision for a

period of eight years. See TEX. CODE CRIM. PROC. ANN. art. 42.12 § 5(a) (West

Supp. 2014). The State then filed a motion and a first-amended motion to

adjudicate appellant’s guilt. See id. §§ 5(b), 21(e). Appellant pleaded not true to

the alleged violations of the terms of his community supervision. The trial court

found the allegations true, adjudicated appellant guilty, and sentenced appellant to

fifteen years’ imprisonment. See id. §§ 5(b), 21(b), 23. Appellant timely filed a

notice of appeal.

Appellant’s appointed counsel on appeal has filed a motion to withdraw,

along with a brief stating that the record presents no reversible error and the appeal

is without merit and is frivolous. See Anders v. California, 386 U.S. 738, 87 S. Ct.

1396 (1967).

Counsel’s brief meets the Anders requirements by presenting a professional

evaluation of the record and supplying us with references to the record and legal

authority. 386 U.S. at 744, 87 S. Ct. at 1400; see also High v. State, 573 S.W.2d

807, 812 (Tex. Crim. App. 1978). Counsel indicates that she has thoroughly

reviewed the record and is unable to advance any grounds of error that warrant

reversal. See Anders, 386 U.S. at 744, 87 S. Ct. at 1400; Mitchell v. State, 193

S.W.3d 153, 155 (Tex. App.—Houston [1st Dist.] 2006, no pet.).

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We have independently reviewed the entire record in this appeal, and we

conclude that no reversible error exists in the record, there are no arguable grounds

for review, and the appeal is frivolous. See Anders, 386 U.S. at 744, 87 S. Ct. at

1400 (emphasizing that reviewing court—and not counsel—determines, after full

examination of proceedings, whether appeal is wholly frivolous); Garner v. State,

300 S.W.3d 763, 767 (Tex. Crim. App. 2009) (reviewing court must determine

whether arguable grounds for review exist); Bledsoe v. State, 178 S.W.3d 824,

826–27 (Tex. Crim. App. 2005) (same); Mitchell, 193 S.W.3d at 155 (reviewing

court determines whether arguable grounds exist by reviewing entire record). We

note that an appellant may challenge a holding that there are no arguable grounds

for appeal by filing a petition for discretionary review in the Texas Court of

Criminal Appeals. See Bledsoe, 178 S.W.3d at 827 & n.6.

Although not an arguable issue, we note the trial court’s judgment does not

accurately reflect the proceedings. The indictment returned against appellant

alleged two counts: count one alleged the first-degree felony offense of assault

causing serious bodily injury while using a deadly weapon against a family

member, and count two alleged the third-degree felony offense of assault family

violence with a prior conviction. See TEX. PENAL CODE ANN. §§ 22.01(b)(2)(A)

(West Supp. 2014), 22.02(b)(1) (West 2011). Appellant pleaded no contest to the

second-degree felony offense of assault causing serious bodily injury. See TEX.

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PENAL CODE ANN. § 22.02(a)(1). But the trial court’s judgment indicates that

appellant was convicted for a first-degree felony offense, that appellant was

convicted of assault causing serious bodily injury while using a deadly weapon

against a family member, and that appellant was convicted pursuant to Count II of

the indictment—a count that only charges appellant with a third-degree felony

offense. Further, appellant pleaded not true to the allegations in the State’s first-

amended motion to adjudicate his guilt, but the trial court’s judgment indicates that

he pleaded true. Finally, the trial court made an affirmative finding at the

conclusion of the adjudication hearing that appellant used a deadly weapon during

the commission of the offense, but the trial court’s judgment does not reflect any

such finding.

We have the authority to reform 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); French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992);

Ferguson v. State, 435 S.W.3d 291, 293–96 (Tex. App.—Waco 2014, pet. struck);

Romero v. State, No. 13-13-00270-CR, 2013 WL 6729959, at *3 (Tex. App.—

Corpus Christi Dec. 19, 2013, no pet.) (mem. op., not designated for publication);

McBreen v. State, Nos. 05-03-01424-CR, 05-03-01425-CR, 2005 WL 3032496, at

*4 (Tex. App.—Dallas Nov. 14, 2005, no pet.) (mem. op., not designated for

publication). Accordingly, we modify the trial court’s judgment to reflect that

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appellant was convicted pursuant to Count I of the indictment, that the “Offense

for which Defendant Convicted [sic]” was aggravated assault against a family

member, that the “Degree” was second, that the “Plea to Motion to Revoke” was

not true, and that the “Findings on Deadly Weapon” was “Yes, not a firearm.”

We affirm the judgment of the trial court as modified and grant counsel’s

motion to withdraw.1 Attorney Kimberly Dufour Gardner must immediately send

appellant the required notice and file a copy of the notice with the Clerk of this

Court. See TEX. R. APP. P. 6.5(c).

PER CURIAM

Panel consists of Chief Justice Radack and Justices Brown and Lloyd.

Do not publish. TEX. R. APP. P. 47.2(b).

1

Appointed counsel still has a duty to inform appellant of the result of this appeal

and that he may, on his own, pursue discretionary review in the Texas Court of

Criminal Appeals. See Ex Parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App.

1997).

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