David Capetillo Jr. v. State

In The
Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-18-00078-CR
____________________
DAVID CAPETILLO JR., Appellant
V.
THE STATE OF TEXAS, Appellee
_______________________________________________________ ______________
On Appeal from the 359th District Court
Montgomery County, Texas
Trial Cause No. 17-01-00587-CR
________________________________________________________ _____________
MEMORANDUM OPINION
In this appeal, David Capetillo Jr.’s court-appointed appellate counsel
submitted a brief in which counsel contends that no arguable grounds can be
advanced to support Capetillo’s appeal from his conviction for evading arrest or
detention with a motor vehicle. 1 Based on our review of the record, we agree that no
arguable grounds exist to support Capetillo’s appeal.
1
See Tex. Penal Code Ann. § 38.04(b)(1) (West 2016).
1
On appeal, Capetillo’s counsel filed an Anders brief presenting counsel’s
professional evaluation of the record. In the brief, counsel concludes that he is unable
to raise any arguable issues in Capetillo’s appeal. 2 After counsel submitted the
Anders brief, we granted an extension of time so that Capetillo could file a pro se
response. Capetillo, however, did not file one.
The record before us show that without the benefit of a plea agreement,
Capetillo pleaded guilty in 2017 to the crime of evading arrest or detention with a
motor vehicle, a third-degree felony. 3 During a punishment hearing, the State proved
and the trial court found that Capetillo has a 1988 felony conviction for armed
robbery. 4 The trial court then sentenced Capetillo to seven years’ imprisonment.5
After reviewing the appellate record and the Anders brief filed by Capetillo’s
counsel, we agree with counsel’s determination that Capetillo cannot raise any
2
See Anders v. California, 386 U.S. 738 (1967); High v. State, 573 S.W.2d
807 (Tex. Crim. App. 1978).
3
See Tex. Penal Code Ann. § 38.04(b)(1).
4
The trial court’s final judgment contains a clerical error that Capetillo
pleaded “true” to the allegation in his indictment that he had a 1988 felony
conviction for armed robbery. Our review of the record, however, reveals Capetillo
pleaded “not true” to the allegation.
5
See id. § 12.42(a) (West 2019) (providing that a third-degree felony with one
enhancement is punishable as a second-degree felony).
2
arguable issues to support an appeal. We also conclude Capetillo’s appeal is
frivolous. Thus, we need not appoint new counsel to re-brief the appeal.6
While the trial court’s judgment is affirmed, a clerical error exists in the trial
court’s judgment in Trial Court Cause Number 17-01-00587-CR. The record shows
that Capetillo pleaded “not true” to the enhancement allegation in his indictment
instead of “true” as the judgment recites. We have the authority to reform the trial
court’s judgment to make the record speak the truth. 7 We may act sua sponte to
reform an incorrect judgment, and we may have a duty to do so.8 To correct the
clerical error, we reform the judgment by deleting the language that states Capetillo
pleaded “true” to the enhancement allegation and replace that statement with “not
true.” As reformed, the trial court’s judgment is affirmed. 9
AFFIRMED AS REFORMED.
6
Cf. Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991) (requiring
court appointment of other counsel only if it is determined arguable grounds exist to
support the appeal).
7
See Tex. R. App. P. 43.2(b); French v. State, 830 S.W.2d 607, 609 (Tex.
Crim. App. 1992).
8
French, 830 S.W.2d at 609; Asberry v. State, 813 S.W.2d 526, 530 (Tex.
App.—Dallas 1991, pet. ref’d).
9
Capetillo may challenge our decision in the case by filing a petition for
discretionary review. See Tex. R. App. P. 68.
3
_________________________
HOLLIS HORTON
Justice
Submitted on January 29, 2019
Opinion Delivered June 12, 2019
Do Not Publish
Before McKeithen, C.J., Kreger and Horton, JJ.
4