Jason Edward Pena v. the State of Texas ( 2023 )

Affirm and Opinion Filed August 31, 2023
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-22-01096-CR
JASON EDWARD PENA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the County Court at Law No. 1
McLennan County, Texas
Trial Court Cause No. 2020-0945-CR1
MEMORANDUM OPINION
Before Justices Partida-Kipness, Reichek, and Miskel
Opinion by Justice Miskel
Jason Edward Pena appeals his conviction for misdemeanor theft, for which
the trial court assessed a twelve-month sentence and a $2,000 fine. See TEX. PENAL
CODE ANN. § 31.03(e)(3). We affirm.
I. WE HAVE JURISDICTION
The record reflects that Pena and his trial counsel signed a boilerplate form
waiving Pena’s right to appeal. However, on the same form, the trial court certified
that Pena had the right to appeal, creating an apparent conflict. Pena did not enter a
plea agreement with the State, and there was no record of any admonition by the trial
court that Pena would be waiving his right to appeal. Just the opposite, Pena stated
on the record that he wanted to appeal, and the trial court did not disabuse him of the
notion that he was permitted to do so. And the State has not argued that the waiver
deprives Pena of the right to appeal.
On similar facts, the Texas Court of Criminal Appeals held that a certification
granting the right to appeal controlled over an inadvertent waiver of the right to
appeal. See Thomas v. State, 408 S.W.3d 877, 887 (Tex. Crim. App. 2013); see also
Willis v. State, 121 S.W.3d 400, 401–03 (Tex. Crim. App. 2003). In line with
Thomas, we conclude we have jurisdiction over this appeal despite the apparently
inadvertent waiver. See Burkley v. State, Nos. 05-21-00827-CR, 05-21-00828-CR,
2023 WL 2568923, at *3 (Tex. App.—Dallas Mar. 20, 2023, no pet.) (mem. op., not
designated for publication).
II. THE APPEAL IS FRIVOLOUS
Appointed counsel filed a motion to withdraw and a brief under Anders v.
California in which he stated that after thorough review, he has found no grounds
for appeal with potential merit. 386 U.S. 738, 744–45 (1967). 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 Stafford
v. State, 813 S.W.2d 503, 510 n.3 (Tex. Crim. App. 1991).
In compliance with Kelly v. State, counsel (1) notified Pena of his motion to
withdraw; (2) provided him with copies of the motion, the brief, and the record; (3)
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informed him of his right to file a pro se response; and (4) informed him of his right
to seek discretionary review should this court hold the appeal frivolous. See 436
S.W.3d 313, 319 (Tex. Crim. App. 2014). This court afforded Pena the opportunity
to file a response, but he did not do so.
After appointed counsel files a motion to withdraw on the ground that an
appeal is frivolous, we are obligated to undertake an independent examination of the
record to determine whether there is any arguable ground that may be raised. See
Stafford, 813 S.W.2d at 511. Only then may we grant counsel’s motion to withdraw.
See Penson v. Ohio, 488 U.S. 75, 82–83 (1988).
After review, we agree that the appeal is frivolous and without merit. We find
nothing in the record that might arguably support an appeal. We grant counsel’s
motion to withdraw and affirm the judgment.
221096f.u05 /Emily Miskel/
Do not publish. EMILY MISKEL
Tex. R. App. P. 47.2(b). JUSTICE
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
JASON EDWARD PENA, Appellant On Appeal from the County Court at
Law No 1, McLennan County, Texas
No. 05-22-01096-CR V. Trial Court Cause No. 2020-0945-
CR1.
THE STATE OF TEXAS, Appellee Opinion delivered by Justice Miskel.
Justices Partida-Kipness and Reichek
participating.
Based on the Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
Judgment entered this 31st day of August, 2023.
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