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Oscar Reveles Carrete v. the State of Texas ( 2024 )


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  •                                  IN THE
    TENTH COURT OF APPEALS
    No. 10-23-00331-CR
    OSCAR REVELES CARRETE,
    Appellant
    v.
    THE STATE OF TEXAS,
    Appellee
    From the 13th District Court
    Navarro County, Texas
    Trial Court No. D41468-CR
    MEMORANDUM OPINION
    In an open plea to the court, Oscar Reveles Carrete pled guilty to one count of
    Manufacture or Delivery of a Controlled Substance, four grams or more but less than 200
    grams (Count One) and Possession of a Controlled Substance, one gram or less (Count
    Two). Because the trial court erred in ordering the sentences for Count One and Count
    Two to run consecutively, we reform the trial court’s judgments in each count to reflect
    that the sentences run concurringly.
    BACKGROUND
    Carrete’s house was searched, pursuant to a warrant, and officers found six grams
    of methamphetamine and one gram of cocaine. Carrete pled guilty without the benefit
    of a plea bargain and, after the preparation of a pre-sentence investigation report, was
    sentenced to 11 years in prison in Count One and two years in a State Jail facility in Count
    Two. The trial court ordered the sentences to run consecutively.
    MERITS BRIEF
    Carrete’s appointed counsel initially filed a motion to withdraw and an Anders
    brief in support of the motion. See Anders v. California, 
    386 U.S. 738
    , 
    87 S. Ct. 1396
    , 
    18 L. Ed. 2d 493
     (1967). When the State observed and briefed an error in the order stacking the
    sentences, appointed counsel agreed and proposed this issue for our review.
    Although this issue is presented in the context of an Anders brief, we consider the
    brief as a brief on the merits and address the alleged error. See Vaughn v. State, Nos. 10-
    17-00275-CR & 10-17-00276-CR, 
    2018 Tex. App. LEXIS 1888
    , **2-3 (Tex. App.—Waco Mar.
    14, 2018, no pet.) (not designated for publication); Hines v. State, Nos. 10-13-00286-CR, 10-
    13-00292-CR, 
    2014 Tex. App. LEXIS 5768
    , at *4 (Tex. App.—Waco May 29, 2014, pet. ref'd)
    (not designated for publication). See also Cummins v. State, 
    646 S.W.3d 605
    , 614, 618-19,
    n.10 (Tex. App.—Waco 2022, pet. ref'd).
    ANALYSIS
    Texas Penal Code section 3.03(a) expressly states that when a defendant is found
    guilty of multiple offenses arising out of the same criminal episode prosecuted in a single
    criminal action, the sentences for each offense “shall” run concurrently. TEX. PENAL CODE
    § 3.03(a). In this case, Carrete was found guilty of both Count One and Count Two in the
    same proceeding, and, according to the record, both offenses arose out of the same
    Carrete v. State                                                                       Page 2
    criminal episode. Therefore, we agree with the parties that the trial court should have
    ordered the sentences for both counts to run concurrently, in accordance with Section
    3.03(a) 1. Carrete’s issue is sustained.
    CONCLUSION
    An improper cumulation order may be remedied by reformation on appeal. Ex
    parte Carter, 
    521 S.W.3d 344
    , 347 (Tex. Crim. App. 2017). Accordingly, the trial court’s
    Judgment of Conviction by Court—Waiver of Jury Trial, Count One, signed on
    September 8, 2023 is reformed to reflect on page 1 that “This Sentence Shall Run:
    Concurrently (see below)[,]” and the special finding or order on page 3 of the same
    judgment is reformed to reflect, “This will run concurrently with Count Two and
    concurrently with D39513-CR.” Further, the trial court’s Judgment of Conviction by
    Court—Waiver of Jury Trial, Count Two, signed on September 8, 2023, is reformed to
    reflect on page 1 that “This Sentence Shall Run Concurrently (see below)[,]” and the
    special finding or order on page 3 of the same judgment is reformed to reflect, “This count
    to begin at the same time as Count One.”
    As reformed, the trial court’s Judgment of Conviction by Court—Waiver of Jury
    Trial, Count One, signed on September 8, 2023 and Judgment of Conviction by Court—
    Waiver of Jury Trial, Count Two, signed on September 8, 2023 are affirmed as reformed.
    Counsel’s motion to withdraw from representation of Carrete is dismissed as
    moot. See Cummins v. State, 
    646 S.W.3d 605
    , 618 (Tex. App.—Waco 2022, pet. ref'd)
    (“when appointed counsel files a motion to withdraw with a merits brief or when counsel
    1
    Subsection (a) provides for some exceptions to this “rule,” but none apply in this case.
    Carrete v. State                                                                            Page 3
    has filed an Anders brief that is not really an Anders brief, but rather a merits brief, we
    have dismissed appointed counsel's motion to withdraw as moot.”).
    TOM GRAY
    Chief Justice
    Before Chief Justice Gray,
    Justice Johnson, and
    Justice Smith
    Affirmed as reformed
    Motion dismissed
    Opinion delivered and filed June 20, 2024
    Do not publish
    [CR25]
    Carrete v. State                                                                     Page 4
    

Document Info

Docket Number: 10-23-00331-CR

Filed Date: 6/20/2024

Precedential Status: Precedential

Modified Date: 6/21/2024