Phillip Michael Nunez v. the State of Texas

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-21-00101-CR
PHILLIP MICHAEL NUNEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 196th District Court
Hunt County, Texas
Trial Court No. 32289CR
Before Morriss, C.J., Stevens and van Cleef, JJ.
Memorandum Opinion by Justice van Cleef
MEMORANDUM OPINION
In 2019, Phillip Michael Nunez pled guilty, pursuant to a plea bargain agreement, to
aggravated assault on a family member with a deadly weapon,1 the adjudication of his guilt was
deferred, and he was placed on deferred adjudication community supervision for ten years. Two
and one-half years later, the State filed a motion to revoke Nunez’s community supervision and
for a final adjudication of his guilt. After a final hearing, in which Nunez pled true to one of the
State’s allegations, the trial court found four of the State’s allegations true, revoked Nunez’s
community supervision, adjudicated his guilt, and sentenced him to thirty years’ imprisonment.
This appeal followed.
Nunez’s appellate counsel filed a brief that outlined the procedural history of the case,
provided a detailed summary of the evidence elicited during the trial court proceedings, and
stated that counsel found no meritorious issues to raise on appeal. 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).
Nunez’s counsel filed a motion with this Court seeking to withdraw as counsel in this
appeal and provided Nunez with a copy of the brief and the motion to withdraw. His counsel
also informed Nunez of his right to review the record and to file a pro se response. On June 28,
1
See TEX. PENAL CODE ANN. § 22.02(b)(1) (Supp.).
2
2022, we notified Nunez that his pro se response was due on or before July 28, 2022. Also, by
letter dated August 10, 2022, we notified Nunez that the case would be submitted on briefs on
August 31, 2022. We have not received a pro se response from Nunez.
We have reviewed the entire appellate record and have independently determined that no
reversible error exists. See Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim. App. 2005).
“However, appellate courts are authorized to reform judgments and affirm as modified in Anders
cases involving non-reversible error.” Mitchell v. State, No. 06-22-00001-CR, 2022 WL
3403437, at *1 (Tex. App.—Texarkana Aug. 17, 2022, no pet. h.) (comprehensively discussing
appellate cases that have modified judgments in Anders cases). In this case, the judgment
adjudicating guilt has an entry under “Plea to Motion to Adjudicate” that recites “TRUE TO
PARAGRAPH 5; NOT TRUE TO PARAGRAPHS 1, 6, AND 7.” However, the record shows
that Nunez pled “true” to paragraph 6 and “not true” to paragraphs 1, 5, and 7. Consequently, we
will modify the judgment adjudicating guilt by changing the recited entry under “Plea to Motion
to Adjudicate” to “TRUE TO PARAGRAPH 6; NOT TRUE TO PARAGRAPHS 1, 5, AND 7.”
3
In the Anders context, once we determine that the appeal is without merit, we must either
dismiss the appeal or affirm the trial court’s judgment. See Anders, 386 U.S. 738. Thus, we
affirm the trial court’s judgment, as modified.2
Charles van Cleef
Justice
Date Submitted: August 31, 2022
Date Decided: September 16, 2022
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.
4