Gabriel Logan Orocio v. State ( 2020 )

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
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06-19-00236-CR
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GABRIEL LOGAN OROCIO, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 5th District Court
Cass County, Texas
Trial Court No. 2019F00147
Before Morriss, C.J., Stevens and Carter,* JJ.
Memorandum Opinion by Justice Carter
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*Jack Carter, Justice, Retired, Sitting by Assignment
MEMORANDUM OPINION
A Cass County jury convicted Gabriel Logan Orocio of indecency with a child by contact,
a second-degree felony. See TEX. PENAL CODE ANN. § 21.11(a). The trial court imposed the jury’s
assessed sentence of ten years’ imprisonment. Orocio appeals.1
Orocio’s attorney on appeal has filed a brief stating that he has reviewed the record and has
found no genuinely arguable issues that could be raised. The brief sets out the procedural history
of the case and summarizes the evidence elicited during the trial court proceedings. Meeting the
requirements of Anders v. California, counsel has provided a professional evaluation of the record
demonstrating why there are no arguable grounds to be advanced. Anders v. California, 386 U.S.
738, 743–44 (1967); In re Schulman, 252 S.W.3d 403, 406 (Tex. Crim. App. 2008) (orig.
proceeding); Stafford v. State, 813 S.W.2d 503, 509–10 (Tex. Crim. App. 1991); High v. State,
573 S.W.2d 807, 812–13 (Tex. Crim. App. [Panel Op.] 1978). Counsel also filed a motion with
this Court seeking to withdraw as counsel in this appeal.
On March 24, 2020, counsel certified that he mailed to Orocio a copy of the brief, the
motion to withdraw, and a motion for pro se access to the appellate record lacking only Orocio’s
signature. Orocio was informed of his right to review the record and file a pro se response. On
April 14, 2020, Orocio filed his motion for pro se access to the appellate record. On April 20, this
Court granted Orocio’s motion for pro se access to the appellate record, reciting that on April 16,
2020, counsel mailed a complete paper copy of the appellate record to Orocio. The order set a
1
In our companion cause numbers 06-19-00234-CR and 06-19-00235-CR, Orocio also appeals from two convictions
of aggravated sexual assault of a child.
2
June 5, 2020, deadline for Orocio to file a pro se response to his counsel’s Anders brief. On July
14, 2020, this Court further informed Orocio that the case would be set for submission on the briefs
on August 4, 2020. We received neither a pro se response from Orocio nor a motion requesting
an extension of time in which to file such a response.
However, in Anders cases, appellate courts “have the authority to reform judgments and
affirm as modified in cases where there is non reversible error.” Ferguson v. State, 435 S.W.3d
291, 294 (Tex. App.—Waco 2014, pet. struck) (comprehensively discussing appellate cases that
have modified judgments in Anders cases). Here, the judgment imposes court costs in the amount
of $314.00, which were also imposed in Orocio’s judgment of conviction in trial court cause
number 2019F00125. However, when a defendant is convicted of two or more offenses in a single
criminal action, “the court may assess each court cost or fee only once against the defendant.”
TEX. CODE CRIM. PROC. ANN. art. 102.073(a). Consequently, we must modify the judgment by
deleting the court costs from the judgment.
We have reviewed the entire appellate record and have independently determined that no
reversible error exists. Accordingly, we modify the trial court’s judgment by deleting the court
costs from the judgment.
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As modified, we affirm the judgment of the trial court.2
Jack Carter
Justice
Date Submitted: August 4, 2020
Date Decided: August 12, 2020
Do Not Publish
2
Since we agree that this case presents no reversible error, we also, in accordance with Anders, grant counsel’s request
to withdraw from further representation of appellant in this case. See Anders, 386 U.S. at 744. No substitute counsel
will be appointed. Should appellant desire to seek further review of this case by the Texas Court of Criminal Appeals,
appellant must either retain an attorney to file a petition for discretionary review or file a pro se petition for
discretionary review. Any petition for discretionary review (1) must be filed within thirty days from either the date
of this opinion or the date on which the last timely motion for rehearing was overruled by this Court, see TEX. R. APP.
P. 68.2, (2) must be filed with the clerk of the Texas Court of Criminal Appeals, see TEX. R. APP. P. 68.3, and (3)
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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