Luis Alberto-Varona Blas v. The State of Texas--Appeal from 241st District Court of Smith County

  NO. 12-06-00305-CR

NO. 12-06-00306-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

LUIS ALBERTO-VARONA BLAS, APPEAL FROM THE 241ST

APPELLANT

V. JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE SMITH COUNTY, TEXAS

MEMORANDUM OPINION

Luis Alberto-Varona Blas appeals his convictions for intoxication assault and accident involving injury or death. Appellant s counsel filed a brief in compliance with Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967) and Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969). We affirm the judgment of conviction in the intoxication assault case (appellate cause number 12-06-00305-CR). After conducting our own review, we abate the accident involving injury or death case (appellate cause number 12-06-00306-CR) and remand for the appointment of new counsel.

Background

In two separate indictments, Appellant was charged with intoxication assault1 and accident involving injury or death, 2

more commonly referred to as failure to stop and render aid. The intoxication assault indictment also alleged that Appellant used or exhibited a deadly weapon, to wit: a motor vehicle, during the commission of or immediate flight from the offense. Intoxication assault is a third degree felony, punishable by imprisonment for not less than two years or more than ten years and, in addition, a fine not to exceed $10,000.3 Accident involving injury or death is punishable by imprisonment for not more than five years or confinement in the county jail for not more than one year, a fine not to exceed $5,000, or both.4

At a hearing on June 5, 2006, Appellant entered a plea of guilty to each of the offenses charged. In both cases, Appellant and his counsel signed an acknowledgment of admonishments, a waiver of trial by jury, a sworn waiver of confrontation and agreement to stipulate, an agreement to stipulate testimony, and a judicial confession in which Appellant swore that all allegations pleaded in both indictments were true. The trial court adjudged Appellant guilty of both offenses. After a combined sentencing hearing on June 22, the court assessed Appellant s punishment at ten years of imprisonment for intoxication assault and five years of imprisonment for accident involving injury or death. The terms of imprisonment are to be served concurrently. This appeal followed.

Analysis pursuant to Anders v. California

Appellant s counsel filed a brief in compliance with Anders and Gainous, stating that he has diligently reviewed the appellate record and is of the opinion that the record reflects no reversible

error and that there is no error upon which an appeal can be predicated. From our review of counsel s brief, it is apparent that he is well acquainted with the facts in these cases. In compliance with Anders, Gainous, and High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. 1978), counsel s brief presents a chronological summation of the procedural history of the case and further states that counsel is unable to raise any meritorious issues for appeal. As required by Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991), Appellant s counsel has moved for leave to withdraw. We carried the motion for consideration with the merits of the appeal.5

We have reviewed the portion of the record pertinent to Appellant s intoxication assault conviction and have found no reversible error.

After reviewing the portion of the record pertinent to Appellant s conviction for accident involving injury or death, we conclude the record contains at least one arguable issue for appeal. The indictment states that the date of the offense was July 4, 2003. Appellant stipulated in his judicial confession that the date of the offense was July 4, 2003. However, the judgment states that the date of the offense was July 4, 2004. We have the power to modify or reform an incorrect judgment to make the record speak the truth when we have the necessary data and information to do so. See Tex. R. App. P. 43.2(b); McCoy v. State, 81 S.W.3d 917, 920 (Tex. App. Dallas 2002, pet. ref d); Asberry v. State, 813 S.W.2d 526, 529 (Tex. App. Dallas 1991, pet. ref d). However, in this case, we cannot resolve the conflict in the dates. Both cases were called at the same plea hearing and sentencing hearing. Therefore, the record of each hearing relates to both cases. The arguments of counsel and the recitations by the trial court indicate that the incident made the basis of both offenses occurred within a period of no more than several hours. However, there is nothing in the record that assists us in determining which of the two dates July 4, 2003 or July 4, 2004 is correct. Thus, we conclude that this discrepancy creates an arguable issue for appeal. See Bledsoe v. State, 178 S.W.3d 824, 827 (Tex. Crim. App. 2005).

Conclusion

As required by Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991), Appellant s counsel has moved for leave to withdraw. We carried the motion for consideration with the merits of the appeal. Appellant s counsel s motion for leave to withdraw in both cases is hereby granted. Having found no reversible error, the trial court s judgment in Appellant s conviction for intoxication assault is affirmed.

We abate our cause number 12-06-00306-CR and remand the case to the trial court. We order the trial court to appoint new counsel to represent Appellant, review the record, and file a brief on the merits for Appellant. See Guerrero v. State, 64 S.W.3d 436, 441 (Tex. App. Waco 2001, no pet.) (citing Penson v. Ohio, 488 U.S. 75, 83-84, 109 S. Ct. 346, 351-52, 102 L. Ed. 2d 300, 310-11 (1988)). We further order the trial court to cause the clerk of the court to immediately forward to this court a certified copy of the order appointing new counsel. Appellant s brief will be due thirty days after the trial court makes the appointment. The State s brief will be due thirty days after Appellant s brief is filed.

JAMES T. WORTHEN

Chief Justice

Opinion delivered March 30, 2007.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(DO NOT PUBLISH)

1 Tex. Pen. Code Ann. 49.07 (Vernon 2003).

2 Tex. Transp. Code Ann. 550.021(a) (Vernon 1999).

3 Tex. Pen. Code Ann. 12.34 (Vernon 2003)

4 Tex. Transp. Code Ann. 550.021(c) (Vernon 1999).

5 Counsel for Appellant certified that he provided Appellant with a copy of his brief and that Appellant was given time to file his own brief in this cause. The time for filing such a brief has expired and we have received no pro se brief.