Affirm and Opinion Filed July 19, 2021
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-18-00391-CR
FRANK PAUL CELAYA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 291st Judicial District Court
Dallas County, Texas
Trial Court Cause No. F12-52876-U
MEMORANDUM OPINION
Before Justices Myers, Partida-Kipness, and Garcia
Opinion by Justice Myers
Appellant Frank Paul Celaya was indicted for the offense of possession of
more than one gram but less than four grams of methamphetamine. He pleaded
guilty to the offense and was placed on deferred adjudication for five years and fined
$1,750. His community supervision was later extended by twelve months. The State
subsequently moved to revoke and proceed with an adjudication of guilt based on
grounds appellant violated certain terms of his community supervision, including
having committed the offense of assault. Appellant pleaded “not true” to the State’s
allegations and, following a hearing, the trial court found the allegations in the
State’s motion to be true, revoked appellant’s community supervision, and sentenced
him to ten years in prison.
Appellant’s counsel has filed a motion to withdraw. The motion is supported
by a brief in which counsel professionally and conscientiously examines the record
and applicable law and concludes this appeal is frivolous and without merit.
Counsel certifies that she provided appellant with a copy of the brief and the
motion to withdraw. The brief meets the requirements of Anders v. California, 386
U.S. 738 (1967). The brief presents a professional evaluation of the record showing
why, in effect, there are no arguable grounds to advance. See High v. State, 573
S.W.2d 807, 812–13 (Tex. Crim. App. [Panel Op.] 1978) (determining whether brief
meets requirements of Anders); see also Arevalos v. State, 606 S.W.3d 912, 915–16
(Tex. App.—Dallas 2020, no pet.) (citing High and concluding Anders brief in
support of motion to withdraw did not meet requirements of Anders and was
deficient as to form). We advised appellant by letter of his right to file a pro se
response, but he has not filed a pro se response. See Kelly v. State, 436 S.W.3d 313,
319–21 (Tex. Crim. App. 2014) (appellant has right to file pro se response to Anders
brief filed by counsel).
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.
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Although not arguable issues, we note two clerical errors in the judgment
adjudicating guilt. The judgment incorrectly states, under “Plea to Motion to
Adjudicate,” that appellant pleaded “true” when the record shows he pleaded “not
true” to the State’s allegations. The judgment also incorrectly states that the “Terms
of Plea Bargain” were “10 Years TDCJ.”
When the record provides the necessary information to correct inaccuracies in
the trial court’s judgment, we have the authority to reform the judgment to speak the
truth. 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 judgment to reflect that, in the portion of
the judgment entitled “Plea to Motion to Adjudicate,” appellant pleaded “NOT
TRUE.” We also delete the reference in the judgment to “TEN YEARS TDCJ”
under “Term of Plea Bargain,” and change it to “N/A.”
Additionally, according to the record of the adjudication hearing, which
occurred on December 7, 2017, the trial court sentenced appellant to 10 years’
confinement, but then “order[ed]” him to “return” to court in six months, on June 6,
2018, for a hearing on whether to suspend the remainder of the sentence or allow
appellant to remain in TDCJ for the remainder of the ten-year sentence. See TEX.
CODE CRIM. PROC. art. 42A.202 (before expiration of 180-day period from the date
of the execution of the sentence, the trial court that imposed the sentence may, on
the court’s own motion, the motion of the attorney representing the State, or on
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written motion of the defendant, to suspend further execution of sentence and place
the defendant on community supervision, provided certain conditions are met). The
court advised appellant just after sentencing him, “That means you’re getting shock
probation.”1
The record on appeal does not reflect what happened on June 6, 2018,2 but the
court of criminal appeals has clarified that courts of appeals have authority to
entertain a defendant’s appeal from an order granting “shock” probation. See Shortt
v. State, 539 S.W.3d 321, 323, 324–25 (Tex. Crim. App. 2018) (recognizing that
statutory provision regarding appeal of placement on community supervision is
broad enough to accommodate an appeal of the conditions of probation imposed by
an order granting shock probation); see also Smith v. State, 559 S.W.3d 527, 536–
37 (Tex. Crim. App. 2018) (“The appeal of an order granting shock probation is
independent of an appeal from adjudication and sentencing. It is a separate appeal
of a separate appealable order, with its own appellate timetable. It requires a separate
notice of appeal.”). Thus, any issues arising from a decision by the trial court to
grant appellant “shock” probation are not before us in this appeal.
We grant counsel’s motion to withdraw and, as modified, affirm the judgment.
1
The trial court based its order on article 42.12 of the code of criminal procedure. As we have noted
before, article 42.12 was repealed and replaced with Chapter 42A, effective January 1, 2017. See, e.g.,
Campos-Hernandez v. State, No. 05-19-01489-CR, 2021 WL 2070330, at *1 (Tex. App.—Dallas May 24,
2021, no pet. h.) (mem. op., not designated for publication).
2
The clerk’s record was filed on April 17, 2018, almost two months earlier.
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/Lana Myers//
LANA MYERS
JUSTICE
180391f.u05
Do Not Publish
TEX. R. APP. P. 47.2(b)
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
FRANK PAUL CELAYA, Appellant On Appeal from the 291st Judicial
District Court, Dallas County, Texas
No. 05-18-00391-CR V. Trial Court Cause No. F12-52876-U.
Opinion delivered by Justice Myers.
THE STATE OF TEXAS, Appellee Justices Partida-Kipness and Garcia
participating.
Based on the Court’s opinion of this date, the trial court’s judgment
adjudicating guilt is MODIFIED as follows:
In the portion of the judgment entitled “Plea to Motion to Adjudicate,”
“TRUE” is changed to “NOT TRUE.”
In the portion of the judgment entitled “Terms of Plea Bargain,” “10
YEARS TDCJ” is changed to “N/A.”
As REFORMED, the judgment is AFFIRMED.
Judgment entered this 19th day of July, 2021.
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