Jose Montadelgado v. the State of Texas ( 2021 )

GRANT; AFFIRMED as MODIFIED and Opinion Filed May 11, 2021
S
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-20-00299-CR
JOSE MONTADELGADO, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 5
Dallas County, Texas
Trial Court Cause No. F-1953575-L
MEMORANDUM OPINION
Before Justices Myers, Partida-Kipness, and Garcia
Opinion by Justice Garcia
A jury convicted appellant of indecency with a child and the court assessed
punishment at nine years in prison.
On appeal, appellant’s counsel has filed a brief in which he concludes the
appeal is frivolous and without merit. 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 (Tex. Crim. App. [Panel Op.] 1978) (determining
whether brief meets requirements of Anders). Counsel delivered a copy of the brief
to appellant. We advised appellant of his right to file a pro se response, but he did
not file a pro se response. See Kelly v. State, 436 S.W.3d 313, 319–21 (Tex. Crim.
App. 2014) (noting appellant has right to file pro se response to Anders brief filed
by counsel).
Although not an arguable issue, counsel’s Anders brief notes a clerical error
in the trial court’s judgment and asks us to modify the judgment to correct the error.
Specifically, the judgment erroneously describes the case as a trial before the court,
but the case was tried to a jury and the court assessed punishment. We may correct
and modify the judgment of a trial court to make the record speak the truth when we
have the necessary data and information to do so. See Ray v. State, No. 05-17-00820,
2018 WL 1149421, at *2 (Tex. App.—Dallas Mar. 5, 2018, no pet.) (mem. op., not
designated for publication) (modifying judgment in Anders appeal); Davis v. State,
No. 01-02-00404-CR, 2003 WL 139655, at *1 (Tex. App.—Houston [1st Dist.] Jan.
9, 2003, no pet.) (mem. op., not designated for publication) (same). The record
supports the requested modification. Accordingly, we modify the judgment to reflect
that the case was tried to a jury and the court assessed punishment. TEX. R. APP. P.
43.2(b).
As required, appellant’s counsel has moved for leave to withdraw and has
provided appellant with a copy of the motion. See In re Schulman, 252 S.W.3d 403,
407 (Tex. Crim. App. 2008) (orig. proceeding). We carried the motion for
consideration with the merits.
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Having modified the judgment to correct the clerical error counsel identified,
and having reviewed the record, we agree with counsel that this appeal is wholly
frivolous and without merit; we find nothing in the record before us that arguably
might support the appeal. See Bledsoe v. State, 178 S.W.3d 824, 827–28 (Tex. Crim.
App. 2005); see also Meza v. State, 206 S.W.3d 684, 685 n.6 (Tex. Crim. App.
2006). Accordingly, we grant counsel’s motion to withdraw, and affirm the trial
court’s judgment as modified. See Tex. R. App. P. 43.2(a), (b)
/Dennise Garcia/
DENNISE GARCIA
JUSTICE
Do Not Publish
TEX. R. APP. P. 47.2(b)
200299F.U05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
JOSE MONTADELGADO, On Appeal from the Criminal District
Appellant Court No. 5, Dallas County, Texas
Trial Court Cause No. F19-53575-L.
No. 05-20-00299-CR V. Opinion delivered by Justice Garcia.
Justices Myers and Partida-Kipness
THE STATE OF TEXAS, Appellee participating.
Based on the Court’s opinion of this date, the judgment of the trial court is
MODIFIED to reflect that the case was tried to a jury and the court assessed
punishment.
As REFORMED, the judgment is AFFIRMED. Counsel’s motion to withdraw is
GRANTED.
Judgment entered May 11, 2021
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