Javier Arriaga v. the State of Texas

Modified and Affirmed and Opinion Filed May 22, 2023

In The Court of Appeals Fifth District of Texas at Dallas No. 05-22-00152-CR

JAVIER ARRIAGA, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 203rd Judicial District Court Dallas County, Texas Trial Court Cause No. F-1955884-P

MEMORANDUM OPINION Before Justices Pedersen, III, Garcia, and Kennedy Opinion by Justice Garcia A jury convicted appellant of evading arrest or detention with a motor vehicle.

The jury assessed punishment, enhanced, at twenty-five years in prison.

On appeal, appellant’s counsel has filed a brief in which he concludes the appeal is frivolous and without merit.1 The brief meets the requirements of Anders v. California, 386 U.S. 738 (1967). The brief presents a professional evaluation of the record showing why, in effect, there are no arguable grounds to advance. See High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. [Panel Op.] 1978) (determining

1 The State agrees with counsel’s assessment that there are no arguable grounds to advance on appeal.

whether brief meets requirements of Anders). Counsel delivered a copy of the brief to appellant. We advised appellant of his right to file a pro se response, but he did not file a pro se response. See Kelly v. State, 436 S.W.3d 313, 319–21 (Tex. Crim. App. 2014) (noting appellant has right to file pro se response to Anders brief filed by counsel).

Although not an arguable issue, the record reflects a clerical error in the trial court’s judgment. Specifically, the judgment erroneously states that appellant pleaded guilty to the offense, but the record reflects that appellant entered a not guilty plea. We may correct and modify the judgment of a trial court to make the record speak the truth when we have the necessary data and information to do so. See Ray v. State, No. 05-17-00820, 2018 WL 1149421, at *2 (Tex. App.—Dallas Mar. 5, 2018, no pet.) (mem. op., not designated for publication) (modifying judgment in Anders appeal); Davis v. State, No. 01-02-00404-CR, 2003 WL 139655, at *1 (Tex. App.—Houston [1st Dist.] Jan. 9, 2003, no pet.) (mem. op., not designated for publication) (same). The record supports modification here. Accordingly, we modify the judgment to reflect that appellant pleaded not guilty to the charged offense. TEX. R. APP. P. 43.2(b).

As required, appellant’s counsel has moved for leave to withdraw and has provided appellant with a copy of the motion. See In re Schulman, 252 S.W.3d 403, 407 (Tex. Crim. App. 2008) (orig. proceeding). We carried the motion for consideration with the merits.

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Having modified the judgment to correct the clerical error, and having reviewed the record, we agree with counsel that this appeal is wholly frivolous and without merit; we find nothing in the record before us that arguably might 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). Accordingly, we grant counsel’s motion to withdraw, and affirm the trial court’s judgment as modified. See Tex. R. App. P. 43.2(a), (b).

/Dennise Garcia/ DENNISE GARCIA JUSTICE 220152f.u05 Do Not Publish TEX. R. APP. P. 47.2(b)

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Court of Appeals Fifth District of Texas at Dallas JUDGMENT

JAVIER ARRIAGA, Appellant On Appeal from the 203rd Judicial District Court, Dallas County, Texas No. 05-22-00152-CR V. Trial Court Cause No. F-1955884-P. Opinion delivered by Justice Garcia. THE STATE OF TEXAS, Appellee Justices Pedersen, III and Kennedy participating.

Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED to reflect that appellant entered a plea of not guilty to the charged offense. As REFORMED, the judgment is AFFIRMED.

Judgment entered this 22nd day of May, 2023.

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