Opinion issued April 21, 2016
In The
Court of Appeals
For The
First District of Texas
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NO. 01-14-00637-CR
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JOSHUA ADAN LOPEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from 184th District Court
Harris County, Texas
Trial Court Cause No. 1398810
MEMORANDUM OPINION
Appellant, Joshua Adan Lopez, pleaded guilty to the second-degree felony
offense of aggravated assault with a deadly weapon, without an agreed punishment
recommendation from the State, pending a pre-sentence investigation (“PSI”) report.
See TEX. PENAL CODE ANN. § 22.02(a)(2), (b) (West Supp. 2015). Following a PSI
report and hearing, the trial court assessed appellant’s punishment at ten years’
confinement on July 1, 2014. This sentence is within the applicable sentencing
range. See id. § 12.33(a) (West Supp. 2015). The trial court certified that this was
not a plea-bargain case, and that appellant had the right of appeal. See TEX. R. APP.
P. 25.2(a)(2). Appellant timely filed a notice of appeal and new counsel was
appointed.
Appellant’s appointed counsel has filed a motion to withdraw, along with an
Anders brief stating that the record presents no reversible error and that, therefore,
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 this Court with references to
the record and legal authority. See id. 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 that she 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.).
Appellant’s counsel has informed us that she has delivered a copy of the
motion to withdraw and Anders brief to appellant and informed him of his right to
file a response and to access the record. See In re Schulman, 252 S.W.3d 403, 408
(Tex. Crim. App. 2008). Furthermore, appellant’s counsel has informed us that she
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also sent a copy of the record to appellant for his review. See Kelly v. State, 436
S.W.3d 313, 322 (Tex. Crim. App. 2014). Appellant has not filed any pro se
response to his counsel’s Anders brief.
We have independently reviewed the entire record in this appeal, and we
conclude that no reversible error exists in the record, that there are no arguable
grounds for review, and that therefore 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, 826–28 (Tex. Crim. App. 2005) (reviewing court is not to address
merits of each claim raised in Anders brief or pro se response after determining there
are no arguable grounds for review); Mitchell, 193 S.W.3d at 155. 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.
We note appellant’s counsel’s brief pointed out that the trial court’s judgment
erroneously contains the boilerplate language in the following special finding:
“APPEAL WAIVED. NO PERMISSION TO APPEAL GRANTED.” To the extent
appellant requests that we reform the judgment to remove this special finding, we
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grant the request because the record supports the trial court’s certification that
appellant has the right of appeal because this was not a plea-bargain case. See
Alcaraz v. State, Nos. 01-14-00675-CR, 01-14-00676-CR, 2015 WL 7783512, at *1
(Tex. App.—Houston [1st Dist.] Dec. 3, 2015, pet. filed) (sustaining appellant’s
request to reform judgment to remove special finding of waiver of right to appeal
because he pleaded guilty without agreed recommendation and, thus, case was not
plea-bargain case) (citing, inter alia, French v. State, 830 S.W.2d 607, 609 (Tex.
Crim. App. 1992) (“[A]n appellate court has authority to reform a judgment . . . to
make the record speak the truth . . . .”)).
CONCLUSION
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Accordingly, we affirm the judgment of the trial court, as modified to remove
the special finding that states “APPEAL WAIVED. NO PERMISSION TO
APPEAL GRANTED[,]” and grant counsel’s motion to withdraw. See TEX. R. APP.
P. 43.2(b).1 Attorney Cheri Duncan must immediately send the required notice and
file a copy of that notice with the Clerk of this Court. See TEX. R. APP. P. 6.5(c).
We dismiss any other pending motions as moot.
PER CURIAM
Panel consists of Chief Justice Radack and Justices Keyes and Higley.
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 Bledsoe, 178 S.W.3d at 826–27.
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Joshua Adan Lopez v. State
Combined Opinion