Ruben Gonzales v. The State of Texas--Appeal from 186th Judicial District Court of Bexar County

No. 04-00-00086-CR
Ruben GONZALES,
Appellant
v.
The STATE of Texas,
Appellee
From the 186th Judicial District Court, Bexar County, Texas
Trial Court No. 1999-CR-4865
Honorable Sam Katz, Judge Presiding

Opinion by: Tom Rickhoff, Justice

Sitting: Tom Rickhoff, Justice

Alma L. L pez, Justice

Sarah B. Duncan, Justice

Delivered and Filed: January 17, 2001

AFFIRMED AS MODIFIED

Appellant Ruben Gonzales was charged with burglary of a habitation. See Tex. Pen. Code Ann 30.02 (Vernon Supp. 2000). Pursuant to a plea agreement, Gonzales pled no contest and was sentenced to seven years imprisonment and a fine of $1,000.00. Gonzales's appellate counsel filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967). The brief proposed a single arguable issue, and appellate counsel filed a motion to withdraw concluding the appeal is frivolous. See Anders, 386 U.S. at 744. We reform the judgment of the trial court and affirm.

The arguable appellate issue is Gonzales was credited with 207 days served prior to sentencing, but had been incarcerated for 208 days. The State has waived briefing. Error in calculation of jail time credit may be reformed on appeal. See Jones v. State, 596 S.W.2d 134,139 (Tex. Crim. App. 1980), overruled on other grounds by Sneed v. State, 670 S.W.2d 262 (Tex. Crim. App 1984) (overruling Jones on jury misconduct issue); Jackson v. State, 990 S.W.2d 879, 882 (Tex. App.-Beaumont 1999, no pet.). The judgment and sentence will therefore be reformed to give Gonzales credit for the 208 days he spent in custody prior to sentencing. See Lowe v. State, 997 S.W.2d 670, 673 (Tex. App.-Dallas 1999) (modifying judgment in Anders appeal).

Counsel's brief meets the requirements of Anders. Counsel has provided Gonzales with a copy of the brief and advised him of the right to review the record and file a pro se brief. Gonzales has not done so.

We have reviewed the record and counsel's brief. We agree the appeal is frivolous and without merit, except for the issue addressed above. The judgment of the trial court is affirmed as modified. We GRANT counsel's motion to withdraw. See Nichols v. State, 954 S.W.2d 83, 86 (Tex. App.-San Antonio 1997, no pet.).

Tom Rickhoff, Justice

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