Alejandro Munoz v. State

IN THE
TENTH COURT OF APPEALS
No. 10-19-00211-CR
No. 10-19-00212-CR
ALEJANDRO MUNOZ,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 85th District Court
Brazos County, Texas
Trial Court Nos. 18-00145-CRF-85; and
19-01830-CRF-85
MEMORANDUM OPINION
In one plea hearing and one sentencing hearing, Alejandro Munoz made an open
plea of guilty to the court and was convicted of two separate offenses: evading arrest or
detention with a previous conviction and assault family violence with previous
convictions. See TEX. PENAL CODE ANN. §§ 38.04(b)(1); 22.01(b)(2)(A). He was sentenced
to 10 years and 13 years, respectively, in prison. The sentences were ordered to run
concurrently.
Munoz’s appellate attorney filed a motion to withdraw and an Anders brief in
support of the motion to withdraw in each case, asserting that the appeals present no
issues of arguable merit. See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d
493 (1967). Counsel advised Munoz that counsel had filed the motion and brief pursuant
to Anders and provided Munoz a copy of the record, advised Munoz of his right to review
the record, and advised Munoz of his right to submit a response on his own behalf.
Munoz did not submit a response.
Counsel asserts in the Anders brief that counsel has made a thorough review of the
entire record, including the sufficiency of the indictments, any pretrial rulings,
compliance with necessary admonishments, Munoz’s competency, the sufficiency of the
open pleas of guilty, the waiver of a presentence investigation report, the punishment,
and the effectiveness of counsel. After the review, counsel has concluded there is no non-
frivolous issue to raise in these appeals. Counsel's brief evidences a professional
evaluation of the record for error, and we conclude that counsel performed the duties
required of appointed counsel. See Anders, 386 U.S. at 744; High v. State, 573 S.W.2d 807,
812 (Tex. Crim. App. 1978); see also In re Schulman, 252 S.W.3d 403, 407 (Tex. Crim. App.
2008).
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Upon the filing of an Anders brief, as the reviewing appellate court, it is our duty
to independently examine the record to decide whether counsel is correct in determining
that an appeal is frivolous. See Anders, 386 U.S. at 744; Stafford v. State, 813 S.W.2d 503,
511 (Tex. Crim. App. 1991). Arguments are frivolous when they "cannot conceivably
persuade the court." McCoy v. Court of Appeals, 486 U.S. 429, 436, 108 S. Ct. 1895, 100 L.
Ed. 2d 440 (1988).
Having carefully reviewed the entire record, the Anders brief, and Munoz’s
response, we have determined that these appeals are frivolous. See Bledsoe v. State, 178
S.W.3d 824, 826-27 (Tex. Crim. App. 2005). We note, however, that costs were assessed
in both judgments of conviction. Where allegations and evidence of more than one
offense are presented in a single trial or plea proceeding, the trial court errs in
assessing costs in each conviction. Hurlburt v. State, 506 S.W.3d 199, 203-204 (Tex. App.—
Waco 2016, no pet.). Based on our precedent, abatement to the trial court for the
appointment of new counsel is not required. See Ferguson v. State, 435 S.W.3d 291 (Tex.
App.—Waco 2014, pet. dism.). Because this error does not impact the determination of
guilt or punishment and, therefore, does not result in a reversal of either judgment, we
may modify one of the judgments to correct the erroneous assessment
of costs. Id. Accordingly, the Judgment of Conviction by Court—Waiver of Jury Trial in
trial court case number 19-01830-CRF-85 is modified to delete the assessed court costs.
We affirm the trial court's Judgment of Conviction by Court—Waiver of Jury Trial in trial
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court case number 19-01830-CRF-85 as modified and affirm the trial court's Judgment of
Conviction by Court—Waiver of Jury Trial in trial court case number 18-00145-CRF-85.
Should Munoz wish to seek further review of these cases by the Texas Court of
Criminal Appeals, he must either retain an attorney to file a petition for discretionary
review or must file a pro se petition for discretionary review. No substitute counsel will
be appointed. Any petition for discretionary review must be filed within thirty days from
the date of this opinion or the last timely motion for rehearing or timely motion for en
banc reconsideration has been overruled by this Court. See TEX. R. APP. P. 68.2. Any
petition and all copies of the petition for discretionary review must be filed with the Clerk
of the Court of Criminal Appeals. See TEX. R. APP. P. 68.3. (Tex. Crim. App. 1997, amended
eff. Sept. 1, 2011). Any petition for discretionary review should comply with the
requirements of Rule 68.4 of the Texas Rules of Appellate Procedure. See TEX. R. APP. P.
68.4. See also In re Schulman, 252 S.W.3d at 409 n.22.
Counsel's motions to withdraw from representation of Munoz are granted, and
counsel is discharged from representing Munoz. Notwithstanding counsel’s discharge,
counsel must send Munoz a copy of our decision, notify him of his right to file a pro se
petition for discretionary review, and send this Court a letter certifying counsel's
compliance with Texas Rule of Appellate Procedure 48.4. TEX. R. APP. P. 48.4; see also In
re Schulman, 252 S.W.3d at 409 n.22.
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TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Neill
Affirmed
Affirmed as modified
Opinion delivered and filed November 27, 2019
Do not publish
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