Jorge Ochoa v. the State of Texas ( 2024 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-23-00225-CR
___________________________
JORGE OCHOA, Appellant
V.
THE STATE OF TEXAS
On Appeal from the 372nd District Court
Tarrant County, Texas
Trial Court No. 1407817
Before Birdwell, Bassel, and Wallach, JJ.
Memorandum Opinion by Justice Wallach
MEMORANDUM OPINION
Appellant Jorge Ochoa pleaded guilty to assault-bodily injury (family violence),
a third-degree felony, in exchange for 5 years of deferred adjudication community
supervision and a $500 fine. See Tex. Penal Code Ann. §§ 12.34, 22.01(a), (b)(2). After
two community-supervision extensions, the State moved to proceed to adjudication
on three grounds, one of which it waived at the adjudication hearing. Ochoa pleaded
true to the remaining grounds. See Tapia v. State, 462 S.W.3d 29, 31 n.2 (Tex. Crim.
App. 2015) (“A plea of true, standing alone, is sufficient to support the revocation of
community supervision and adjudicate guilt.”). The trial court adjudicated him guilty
and sentenced him to 4 years’ confinement. The trial court did not orally pronounce a
fine but included a $24 fine in the judgment.
Ochoa’s appointed appellate counsel has filed a motion to withdraw and a brief
under Anders v. California,1 representing that “[t]he record in this case reveal[s] no
ground that could be argued non-frivolously on appeal.” Counsel’s brief and motion
meet the requirements of Anders by presenting a professional evaluation of the record
demonstrating why there are no arguable grounds for relief. See In re Schulman,
252 S.W.3d 403, 406–12 (Tex. Crim. App. 2008) (orig. proceeding). We gave Ochoa
the opportunity to file a pro se response, but he has not done so. The State did not
1
386 U.S. 738, 744–45, 87 S. Ct. 1396, 1400 (1967).
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file a brief but noted in a letter that it agreed with counsel that there were no
meritorious grounds for appeal.
Once an appellant’s court-appointed attorney files a motion to withdraw on the
ground that an appeal is frivolous and fulfills the requirements of Anders, we must
independently examine the record. See Stafford v. State, 813 S.W.2d 503, 511 (Tex.
Crim. App. 1991). Only then may we grant counsel’s motion to withdraw. See Penson v.
Ohio, 488 U.S. 75, 82–83, 109 S. Ct. 346, 351 (1988).
We have carefully reviewed the record and counsel’s brief. Except for our
corrections to the judgment and bill of costs addressed below, we agree with counsel
that the appeal is frivolous and without merit; we find nothing in the record that
might arguably 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).
In the trial court’s judgment adjudicating guilt, the trial court assessed a
$24 fine but gave Ochoa credit for time served to account for it. The $24 fine should
not have been included in the judgment because it was not pronounced at sentencing.
See Anastassov v. State, 664 S.W.3d 815, 820 (Tex. Crim. App. 2022) (stating that a fine
is punitive in nature and is part of a defendant’s sentence); Ette v. State, 559 S.W.3d
511, 513 (Tex. Crim. App. 2018) (stating that—with a jury-verdict exception not
applicable here—sentences, including fines, must be orally pronounced in a
defendant’s presence, and, as a matter of due process and fair notice, the sentence
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orally pronounced by the trial judge controls if it differs from the sentence detailed in
the written judgment). We delete the $24 fine from the judgment.
The trial court’s judgment also gives Ochoa credit for time served for $314 in
court costs and $550 reimbursement for attorney’s fees. See Tex. Code Crim. Proc.
Ann. art. 43.09. The bill of costs, however, reflects that Ochoa owes these amounts.
We correct the bill of costs to delete these amounts so that the bill of costs matches
the judgment. See Bray v. State, 179 S.W.3d 725, 730 (Tex. App.—Fort Worth 2005, no
pet.).
With the modifications set out above, we affirm the trial court’s judgment and
grant counsel’s motion to withdraw. 2
If Ochoa wishes to pursue further review of his case by the Texas Court of
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Criminal Appeals, he must either retain an attorney to file a petition for discretionary
review on his behalf or file a pro se petition for discretionary review. Khondoker v. State,
Nos. 02-14-00461-CR, 02-14-00462-CR, 02-14-00463-CR, 2015 WL 5634244, at
*2 (Tex. App.—Fort Worth Sept. 24, 2015, no pet.) (mem. op., not designated for
publication). Any petition for discretionary review must be filed within 30 days after
the date of this court’s judgment or the date the last timely motion for rehearing, or
timely motion for en banc reconsideration, is overruled by this court. Tex. R. App. P.
68.2. Additionally, any petition for discretionary review must be filed with the clerk of
the Texas Court of Criminal Appeals and should comply with the requirements of
Rule 68.4 of the Texas Rules of Appellate Procedure. Tex. R. App. P. 68.3(a), 68.4.
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/s/ Mike Wallach
Mike Wallach
Justice
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: April 25, 2024
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