David Luna v. the State of Texas ( 2022 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-21-00003-CR
David LUNA,
Appellant
v.
The STATE of Texas,
Appellee
From the 25th Judicial District Court, Guadalupe County, Texas
Trial Court No. 13-1176-CR-B
Honorable Gary L. Steel, Judge Presiding
Opinion by: Irene Rios, Justice
Sitting: Rebeca C. Martinez, Chief Justice
Irene Rios, Justice
Lori I. Valenzuela, Justice
Delivered and Filed: February 2, 2022
AFFIRMED AS MODIFIED; MOTION TO WITHDRAW GRANTED
Appellant David Luna appeals the trial court’s judgment revoking his community
supervision. Because we conclude this appeal is frivolous and without merit, we affirm the trial
court’s judgment and grant counsel’s motion to withdraw.
On May 23, 2016, Luna pled guilty to the offense of burglary of a habitation. The trial
court sentenced him to ten years in prison, suspended the sentence, and placed Luna on community
supervision for eight years. Thereafter, the State moved to revoke Luna’s community supervision.
04-21-00003-CR
On December 2, 2020, the trial court revoked Luna’s community supervision and imposed a ten-
year sentence.
On appeal, Luna’s court-appointed appellate counsel filed a brief stating he conducted a
professional evaluation of the record and determined there are no arguable grounds to be advanced
on Luna’s behalf. See Anders v. California, 386 U.S. 738, 744 (1967). With citations to the record
and legal authority, counsel explains why he concluded the appeal is without merit. Counsel states
he thoroughly reviewed the record in the underlying criminal proceeding, as well as the record of
the revocation hearing. The brief meets the requirements of Anders as it presents a professional
evaluation showing why there is no basis to advance an appeal. Id. at 744–45; Stafford v. State,
813 S.W.2d 503, 509–10, 510 n.3 (Tex. Crim. App. 1991); High v. State, 573 S.W.2d 807, 812–
13 (Tex. Crim. App. 1978).
Counsel provided Luna with copies of counsel’s Anders brief and motion to withdraw, a
motion for pro se access to the appellate record, and informed Luna of his right to review the
record, file his own brief, and seek discretionary review should this court conclude Luna’s appeal
is frivolous. See Kelly v. State, 436 S.W.3d 313, 319–20 (Tex. Crim. App. 2014); Nichols v. State,
954 S.W.2d 83, 85–86 (Tex. App.—San Antonio 1997, no pet.); Bruns v. State, 924 S.W.2d 176,
177 n.1 (Tex. App.—San Antonio 1996, no pet.). Thereafter, we set the deadline for Luna to file
a pro se brief. Luna did not file a pro se brief.
After reviewing the record and counsel’s Anders brief, we conclude there is no reversible
error and agree this appeal is frivolous and without merit. However, because the record shows
Luna is indigent and does not indicate a material change in his financial circumstances occurred,
we must modify the part of the judgment assessing court-appointed attorney’s fees against him.
See Cates v. State, 402 S.W.3d 250, 251 (Tex. Crim. App. 2013) (internal quotations omitted)
(“[A] defendant who is determined by the court to be indigent is presumed to remain indigent for
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04-21-00003-CR
the remainder of the proceedings in the case unless a material change in the defendant’s financial
circumstances occurs.”); Wilmurth v. State, 419 S.W.3d 553, 554–55 (Tex. App.—San
Antonio 2013, no pet.) (modifying judgment to delete assessment of attorney’s fees when
defendant is indigent). Accordingly, we modify the trial court’s judgment to delete the assessment
of attorney’s fees against Luna.
Our review also discloses a remedial error in the written judgment. The judgment
incorrectly states Luna pled “True” to the allegations in the State’s motion to revoke. Because the
written judgment does not accurately reflect the proceedings in the trial court, we modify the
judgment to change the “Plea to Motion to Revoke:” from “True” to “Not True.” See French v.
State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992) (stating appellate court is authorized to reform
the judgment to “make the record speak the truth”).
We grant the motion to withdraw filed by Luna’s counsel, modify the trial court’s
judgment, and affirm the judgment as modified. 1 See Nichols, 954 S.W.2d at 86; Bruns,
924 S.W.2d at 177 n.1.
Irene Rios, Justice
Do not publish
1
No substitute counsel will be appointed. Should Luna wish to seek further review of this case by the Texas Court of
Criminal Appeals, Luna must either retain an attorney to file a petition for discretionary review or Luna must file a
pro se petition for discretionary review. Any petition for discretionary review must be filed within thirty days from
the later of: (1) the date of this opinion; or (2) the date the last timely motion for rehearing is overruled by this court.
See TEX. R. APP. P. 68.2. Any petition for discretionary review must be filed with the Texas Court of Criminal
Appeals. See TEX. R. APP. 68.3. Any petition for discretionary review should comply with the requirements of Rule
68.4 of the Texas Rules of Appellate Procedure. See TEX. R. APP. P. 68.4.
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