                                      In The

                                Court of Appeals
                     Ninth District of Texas at Beaumont
                            ____________________
                               NO. 09-18-00078-CR
                            ____________________

                       DAVID CAPETILLO JR., Appellant

                                         V.

                        THE STATE OF TEXAS, Appellee

_______________________________________________________            ______________

                     On Appeal from the 359th District Court
                          Montgomery County, Texas
                        Trial Cause No. 17-01-00587-CR
________________________________________________________             _____________

                           MEMORANDUM OPINION

      In this appeal, David Capetillo Jr.’s court-appointed appellate counsel

submitted a brief in which counsel contends that no arguable grounds can be

advanced to support Capetillo’s appeal from his conviction for evading arrest or

detention with a motor vehicle. 1 Based on our review of the record, we agree that no

arguable grounds exist to support Capetillo’s appeal.


      1
          See Tex. Penal Code Ann. § 38.04(b)(1) (West 2016).
                                         1
      On appeal, Capetillo’s counsel filed an Anders brief presenting counsel’s

professional evaluation of the record. In the brief, counsel concludes that he is unable

to raise any arguable issues in Capetillo’s appeal. 2 After counsel submitted the

Anders brief, we granted an extension of time so that Capetillo could file a pro se

response. Capetillo, however, did not file one.

      The record before us show that without the benefit of a plea agreement,

Capetillo pleaded guilty in 2017 to the crime of evading arrest or detention with a

motor vehicle, a third-degree felony. 3 During a punishment hearing, the State proved

and the trial court found that Capetillo has a 1988 felony conviction for armed

robbery. 4 The trial court then sentenced Capetillo to seven years’ imprisonment.5

After reviewing the appellate record and the Anders brief filed by Capetillo’s

counsel, we agree with counsel’s determination that Capetillo cannot raise any



      2
       See Anders v. California, 386 U.S. 738 (1967); High v. State, 573 S.W.2d
807 (Tex. Crim. App. 1978).
      3
          See Tex. Penal Code Ann. § 38.04(b)(1).
      4
        The trial court’s final judgment contains a clerical error that Capetillo
pleaded “true” to the allegation in his indictment that he had a 1988 felony
conviction for armed robbery. Our review of the record, however, reveals Capetillo
pleaded “not true” to the allegation.
      5
       See id. § 12.42(a) (West 2019) (providing that a third-degree felony with one
enhancement is punishable as a second-degree felony).
                                           2
arguable issues to support an appeal. We also conclude Capetillo’s appeal is

frivolous. Thus, we need not appoint new counsel to re-brief the appeal.6

      While the trial court’s judgment is affirmed, a clerical error exists in the trial

court’s judgment in Trial Court Cause Number 17-01-00587-CR. The record shows

that Capetillo pleaded “not true” to the enhancement allegation in his indictment

instead of “true” as the judgment recites. We have the authority to reform the trial

court’s judgment to make the record speak the truth. 7 We may act sua sponte to

reform an incorrect judgment, and we may have a duty to do so.8 To correct the

clerical error, we reform the judgment by deleting the language that states Capetillo

pleaded “true” to the enhancement allegation and replace that statement with “not

true.” As reformed, the trial court’s judgment is affirmed. 9

      AFFIRMED AS REFORMED.



      6
        Cf. Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991) (requiring
court appointment of other counsel only if it is determined arguable grounds exist to
support the appeal).
      7
       See Tex. R. App. P. 43.2(b); French v. State, 830 S.W.2d 607, 609 (Tex.
Crim. App. 1992).
      8
     French, 830 S.W.2d at 609; Asberry v. State, 813 S.W.2d 526, 530 (Tex.
App.—Dallas 1991, pet. ref’d).
      9
         Capetillo may challenge our decision in the case by filing a petition for
discretionary review. See Tex. R. App. P. 68.
                                          3
                                                 _________________________
                                                      HOLLIS HORTON
                                                           Justice


Submitted on January 29, 2019
Opinion Delivered June 12, 2019
Do Not Publish

Before McKeithen, C.J., Kreger and Horton, JJ.




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