Victor Lee Alfaro v. The State of Texas Appeal from 332nd District Court of Hidalgo County (memorandum opinion)

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NUMBER 13-22-00268-CR COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI – EDINBURG VICTOR LEE ALFARO, Appellant, v. THE STATE OF TEXAS, Appellee. On appeal from the 332nd District Court of Hidalgo County, Texas. MEMORANDUM OPINION Before Chief Justice Contreras and Justices Benavides and Tijerina Memorandum Opinion by Chief Justice Contreras Appellant Victor Lee Alfaro was convicted of murder, a first-degree felony, and was sentenced to fifty-eight years’ imprisonment. See TEX. PENAL CODE ANN. § 19.02(c). Appellant’s court-appointed counsel has filed an Anders brief stating that there are no arguable grounds for appeal. See Anders v. California, 386 U.S. 738, 744 (1967). We affirm the trial court’s judgment as modified. I. ANDERS BRIEF Pursuant to Anders v. California, appellant’s court-appointed appellate attorneys filed a brief and a motion to withdraw with this Court, stating that their review of the record yielded “no meritorious issues to raise” on appeal. See id. The brief meets the requirements of Anders as it presents a professional evaluation demonstrating why there are no arguable grounds to advance on appeal. See In re Schulman, 252 S.W.3d 403, 406 n.9 (Tex. Crim. App. 2008) (orig. proceeding) (“In Texas, an Anders brief need not specifically advance ‘arguable’ points of error if counsel finds none, but it must provide record references to the facts and procedural history and set out pertinent legal authorities.” (citing Hawkins v. State, 112 S.W.3d 340, 343–44 (Tex. App.—Corpus Christi–Edinburg 2003, no pet.))); Stafford v. State, 813 S.W.2d 503, 510 n.3 (Tex. Crim. App. 1991). In compliance with High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel Op.] 1978) and Kelly v. State, 436 S.W.3d 313, 319–22 (Tex. Crim. App. 2014), appellant’s attorneys carefully discussed why, under controlling authority, there is no reversible error in the trial court’s judgment. Appellant’s attorneys also informed this Court in writing that they: (1) notified appellant that they have filed an Anders brief and a motion to withdraw; (2) provided appellant with copies of both pleadings; (3) informed appellant of his rights to file a pro se response, to review the record prior to filing that response, and to seek discretionary review if we conclude that the appeal is frivolous; and (4) provided appellant with a form motion for pro se access to the appellate record that 2 only requires appellant’s signature and date with instructions to file the motion within ten days. See Anders, 386 U.S. at 744; Kelly, 436 S.W.3d at 319–20; see also In re Schulman, 252 S.W.3d at 408–09. Appellant filed a pro se motion for access to the appellate record, which we granted. Appellant then filed a pro se response to the Anders brief. When appellate counsel files an Anders brief and the appellant independently files a pro se response, the court of appeals has two choices: [i]t may determine that the appeal is wholly frivolous and issue an opinion explaining that it has reviewed the record and finds no reversible error. Or, it may determine that arguable grounds for appeal exist and remand the cause to the trial court so that new counsel may be appointed to brief the issues. Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim. App. 2005) (internal citations omitted). We are “not required to review the merits of each claim raised in an Anders brief or a pro se response.” Id. at 827. Rather, we must merely determine if there are any arguable grounds for appeal. Id. If we determine there are such arguable grounds, we must remand for appointment of new counsel. Id. Reviewing the merits raised in a pro se response would deprive an appellant of the meaningful assistance of counsel. Id. II. INDEPENDENT REVIEW Upon receiving an Anders brief, we must conduct a full examination of all the proceedings to determine whether the case is wholly frivolous. Penson v. Ohio, 488 U.S. 75, 80 (1988). We have reviewed the record, the Anders brief, and appellant’s pro se response, and we have found nothing that would arguably support an appeal. See Bledsoe, 178 S.W.3d at 827–28 (“Due to the nature of Anders briefs, by indicating in the 3 opinion that it considered the issues raised in the briefs and reviewed the record for reversible error but found none, the court of appeals met the requirements of Texas Rule of Appellate Procedure 47.1.”); Stafford, 813 S.W.2d at 511. III. MODIFICATION OF JUDGMENT The trial court’s judgment states that appellant is entitled to credit for 2,202 days spent in jail. See TEX. CODE CRIM. PROC. ANN. art. 42.03, § 2(a)(1) (“In all criminal cases the judge of the court in which the defendant is convicted shall give the defendant credit on the defendant’s sentence for the time that the defendant has spent . . . in jail for the case . . . from the time of his arrest and confinement until his sentence by the trial court.”). In their Anders brief, appellant’s attorneys note that, according to the record, appellant was arrested on May 4, 2016, he was not released on bond, and the judgment of conviction was signed on May 18, 2022, meaning appellant spent 2,205 days in jail at the time of his conviction. We have the power to modify a judgment to speak the truth when we are presented with the necessary information to do so. See Bigley v. State, 865 S.W.2d 26, 27–28 (Tex. Crim. App. 1993). Accordingly, we modify the judgment to reflect that appellant is entitled to credit on his sentence for 2,205 days spent in jail. See TEX. CODE CRIM. PROC. ANN. art. 42.03, § 2(a)(1). IV. MOTION TO WITHDRAW In accordance with Anders, appellant’s attorneys have asked this Court for permission to withdraw as counsel. See Anders, 386 U.S. at 744; see also In re Schulman, 252 S.W.3d at 408 n.17. We grant counsel’s motion to withdraw. Within five days from the date of this Court’s opinion, counsel is ordered to send a copy of this opinion 4 and this Court’s judgment to appellant and to advise him of his right to file a petition for discretionary review. 1 See TEX. R. APP. P. 48.4; see also In re Schulman, 252 S.W.3d at 411 n.35; Ex parte Owens, 206 S.W.3d 670, 673 (Tex. Crim. App. 2006). V. CONCLUSION We affirm the trial court’s judgment as modified herein. See TEX. R. APP. P. 43.2(b). DORI CONTRERAS Chief Justice Do not publish. TEX. R. APP. P. 47.2(b). Delivered and filed on the 4th day of January, 2024. No substitute counsel will be appointed. Should appellant wish to seek further review of this case by the Texas Court of Criminal Appeals, he 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 must be filed within thirty days from the date of either this opinion or the last timely motion for rehearing or timely motion for en banc reconsideration that was overruled by this Court. See TEX. R. APP. P. 68.2. Any petition for discretionary review must be filed with the Clerk of the Texas Court of Criminal Appeals. See TEX. R. APP. P. 68.3. Any petition for discretionary review should comply with the requirements of Texas Rule of Appellate Procedure 68.4. See TEX. R. APP. P. 68.3. 1 5

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