Andres Dominguez, Jr. v. the State of Texas ( 2023 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-22-00763-CR
Andres Dominguez, Jr., Appellant
v.
The State of Texas, Appellee
FROM THE 207TH DISTRICT COURT OF COMAL COUNTY
NO. CR2020-354, THE HONORABLE STEPHANIE BASCON, JUDGE PRESIDING
MEMORANDUM OPINION
Appellant Andres Dominguez, Jr. was found guilty by a jury of the offense of
tampering with physical evidence and was sentenced to twelve years’ confinement in the Texas
Department of Criminal Justice—Institutional Division. See Tex. Penal Code § 37.09(c);
see also id. § 12.42(a).
Appellant’s court-appointed attorney has filed a motion to withdraw supported
by a brief concluding that the appeal is frivolous and without merit. The brief meets the
requirements of Anders v. California by presenting a professional evaluation of the record
demonstrating why there are no arguable grounds to be advanced. See 386 U.S. 738, 744
(1967); Garner v. State, 300 S.W.3d 763, 766 (Tex. Crim. App. 2009); see also Penson v. Ohio,
488 U.S. 75, 86-87 (1988).
Appellant’s counsel has represented to the Court that he has provided copies of
the motion and brief to appellant; advised appellant of his right to examine the appellate record
and file a pro se response; and provided appellant with a form motion for pro se access to the
appellate record along with the mailing address of this Court. See Kelly v. State, 436 S.W.3d
313, 319-21 (Tex. Crim. App. 2014); see also Anders, 386 U.S. at 744; Garner, 300 S.W.3d
at 766. Appellant requested access to the appellate record, and pursuant to this Court’s order, the
Comal County District Clerk provided written verification to this Court that a copy of the
appellate record was sent to appellant by certified mail on May 15, 2023. To date, appellant has
not filed a pro se response or requested an extension of time to file a response.
We have conducted an independent review of the record, including
appellate counsel’s briefs, and find no reversible error. See Anders, 386 U.S. at 744; Garner,
300 S.W.3d at 766; Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005). We agree
with counsel that the record presents no arguably meritorious grounds for review and the
appeal is frivolous.
We note, however, that the judgment of conviction contains two non-
reversible errors. First, the record reflects that Dominguez pleaded “not guilty,” and to the extent
that the judgment suggests that that Dominguez entered into a plea bargain with the State, it is
incorrect. Second, the judgment of conviction states that Dominguez was convicted of a “third
degree enhanced to second degree” felony. Although the punishment range for an offense may
be enhanced by proof of a prior felony conviction, the enhancement does not affect the grade
of the primary offense. See Ford v. State, 334 S.W.3d 230, 234-35 (Tex. Crim. App. 2011).
Therefore, to the extent the judgment suggests that Dominguez was convicted of a second-degree
offense, it is incorrect.
Appellate courts are authorized to modify an incorrect judgment when the
information necessary to do so is available. Figueroa v. State, 250 S.W.3d 490, 517 (Tex.
2
App.—Austin 2008, pet. ref’d). That authority to modify extends to judgments in Anders cases
when the modification will not result in a reversal of the judgment. Brunson v. State, No. 03-22-
00434-CR, 2023 Tex. App. LEXIS 5672, at *4 (Tex. App.—Austin Aug. 1, 2023, no pet. h.)
(mem. op., not designated for publication); Mitchell v. State, 653 S.W.3d 295, 297 (Tex. App.—
Texarkana 2022, no pet.); Stafford v. State, No. 13-20-00324-CR, 2021Tex. App. LEXIS 4618,
at *3 (Tex. App.—Corpus Christi-Edinburg June 10, 2021, no pet.) (mem. op., not designated for
publication) see Gonzales-Ortiz v. State, No. 03-21-00532-CR, No. 03-21-00533-CR, 2022 Tex.
App. LEXIS 9184, at *4 (Tex. App.—Austin Dec. 16, 2022, no pet.) (mem. op., not designated
for publication) (modifying judgment to remove unauthorized court costs in Anders appeal).
Accordingly, we modify the judgment of conviction to (1) delete the recited statement under the
“Terms of Plea Bargain” heading, and (2) under the “Degree of Offense” heading, replace the
language “third degree enhanced second degree felony” with “third degree felony (enhanced for
punishment to second degree felony).”
We affirm the judgment of conviction, modified as described above, and grant
counsel’s motion to withdraw.
__________________________________________
Chari L. Kelly, Justice
Before Chief Justice Byrne, Justices Baker and Kelly
Modified and, as Modified, Affirmed
Filed: August 25, 2023
Do Not Publish
3