      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-15-00482-CR
                                      NO. 03-15-00483-CR
                                      NO. 03-15-00484-CR



                                    Tony Robleto, Appellant

                                                 v.

                                  The State of Texas, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 299TH JUDICIAL DISTRICT
            NOS. D-1-DC-14-204512, D-1-DC-14-204513, & D-1-DC-14-204516,
               THE HONORABLE KAREN SAGE, JUDGE PRESIDING



                            MEMORANDUM OPINION


               After the trial court denied his pretrial motion to suppress, appellant Tony Robleto

pled guilty and judicially confessed to three felony drug offenses: possession of a controlled

substance with intent to deliver, methamphetamine, see Tex. Health & Safety Code §§ 481.112(a)

(defining offense of possession with intent to deliver controlled substance in Penalty Group 1),

481.102(6) (listing methamphetamine as Penalty Group 1 controlled substance), possession of a

controlled substance with intent to deliver, cocaine, see id. §§ 481.112(a), 481.102(3)(D) (listing

cocaine as Penalty Group 1 controlled substance), and possession of a controlled substance with

intent to deliver, morphine, see id. §§ 481.112(a), 481.102(3)(A) (listing morphine as Penalty Group

1 controlled substance). In accordance with a plea agreement between appellant and the State, the

trial court assessed appellant’s punishment at six years’ confinement in the Texas Department of
Criminal Justice for each offense, ordering the sentences to run concurrently. See id. §§ 482.112 (c)

(establishing that drug possession offense is second degree felony if amount of controlled substance

possessed is one gram or more but less than four grams), (d) (establishing that drug possession

offense is first degree felony if amount of controlled substance possessed is four grams or more but

less than 200 grams); see also Tex. Penal Code §§ 12.32 (setting forth punishment range for first

degree felony), 12.33 (setting forth punishment range for second degree felony).

                Appellant’s court-appointed attorney has filed a motion to withdraw supported by a

brief concluding that the appeals are frivolous and without merit.1 The brief meets the requirements

of Anders v. California by presenting a professional evaluation of the record demonstrating why

there are no arguable grounds to be advanced. See Anders v. California, 386 U.S. 738, 744 (1967);

Garner v. State, 300 S.W.3d 763, 766 (Tex. Crim. App. 2009); see also Penson v. Ohio, 488 U.S. 75,

81–82 (1988).

                Appellant’s counsel has certified to this Court that he sent copies of the motion and

brief to appellant, advised appellant of his right to examine the appellate record and file a pro se

response, and provided a motion to assist appellant in obtaining the record. See Kelly v. State,

436 S.W.3d 313, 319–20 (Tex. Crim. App. 2014); see also Anders, 386 U.S. at 744. Appellant

requested access to the appellate record, and pursuant to this Court’s order the clerk of the trial court

provided written verification to this Court that the record was provided to appellant. See Kelly,




        1
          These were plea-bargain cases, but the suppression matter was raised by written motion
filed and ruled on before trial and appellant did not withdraw or waive the suppression issue as part
of the plea bargain. Thus, appellant had the right of appeal as to the suppression issue. See Tex.
Code Crim. Proc. art. 44.02; see also Tex. R. App. P. 25.2(a)(2)(A).

                                                   2
436 S.W.3d at 321. To date, appellant has not filed a pro se response or requested an extension of

time to file a response.

               We have conducted an independent review of the record—including the record of the

suppression hearing, the plea proceedings, and appellate counsel’s brief—and find no reversible

error. See Anders, 386 U.S. at 744; Garner, 300 S.W.3d at 766; Bledsoe v. State, 178 S.W.3d 824,

826–27 (Tex. Crim. App. 2005). We agree with counsel that the record presents no arguably

meritorious grounds for review and the appeals are frivolous. Counsel’s motion to withdraw

is granted.

               On review of the record, however, we observe that the written judgments of

conviction in these cases contain non-reversible clerical error. First, the judgment of conviction in

each case incorrectly identifies the offense for which appellant was convicted. The judgment in

cause number D-1-DC-14-204512 (appeal number 03-15-00482-CR) states that the “Offense for

which Defendant Convicted” is “Delivery Controlled Substance–Methamphetamine,” the judgment

in cause number D-1-DC-14-204513 (appeal number 03-15-00483-CR) states that the “Offense for

which Defendant Convicted” is “Delivery Controlled Substance–Cocaine,” and the judgment in

cause number D-1-DC-14-204516 (appeal number 03-15-00484-CR) states that the “Offense for

which Defendant Convicted” is “Delivery Controlled Substance–Morphine.” However, in each case

appellant was indicted for—and pled guilty to—the offense of possession of a controlled substance

with intent to deliver rather than delivery of a controlled substance.

               Second, the judgment of conviction in each case fails to correctly identify the statute

under which appellant was charged and convicted.               The judgments in cause number



                                                  3
D-1-DC-14-204512 (appeal number 03-15-00482-CR) and cause number D-1-DC-14-204513

(appeal number 03-15-00483-CR) state that the “Statute for Offense” is “481.112(d) Health and

Safety Code.” This statutory provision establishes that a drug possession offense is a first degree

felony if the amount of controlled substance possessed is four grams or more but less than 200

grams. However, the applicable statutory provisions for the drug possession offense as alleged in

the indictments in these two cases also include section 481.112(a) of the Health and Safety Code,

the statutory provision that defines the offense of possession of a controlled substance with intent

to deliver.   Similarly, the judgment in cause number D-1-DC-14-204516 (appeal number

03-15-00484-CR) states that the “Statute for Offense” is “481.112(c) Health and Safety Code.” This

statutory provision establishes that a drug possession offense is a second degree felony if the amount

of controlled substance possessed is one gram or more but less than four grams. Once again,

however, the applicable statutory provisions for the drug possession offense as alleged in the

indictment in cause number D-1-DC-14-204516 (appeal number 03-15-00484-CR) also include

section 481.112(a) of the Health and Safety Code, the statutory provision that defines the offense of

possession of a controlled substance with intent to deliver.

               This Court has authority to modify incorrect judgments when the necessary

information is available to do so. See Tex. R. App. P. 46.2(b); Bigley v. State, 865 S.W.2d 26, 27–28

(Tex. Crim. App. 1993). Accordingly, we modify the judgments of conviction in these cases

as follows:


•      We modify the judgment in cause number D-1-DC-14-204512 (appeal number
       03-15-00482-CR) to reflect that the “Offense for which Defendant Convicted” is “Possession



                                                  4
       of a Controlled Substance with Intent to Deliver–Methamphetamine” and to reflect that the
       “Statute for Offense” is “481.112(a), (d) Health and Safety Code.”

•      We modify the judgment in cause number D-1-DC-14-204513 (appeal number
       03-15-00483-CR) to reflect that the “Offense for which Defendant Convicted” is “Possession
       of a Controlled Substance with Intent to Deliver–Cocaine” and to reflect that the “Statute for
       Offense” is “481.112(a), (d) Health and Safety Code.”

•      We modify the judgment in cause number D-1-DC-14-204516 (appeal number
       03-15-00484-CR) to reflect that the “Offense for which Defendant Convicted” is “Possession
       of a Controlled Substance with Intent to Deliver–Morphine” and to reflect that the “Statute
       for Offense” is “481.112(a), (c) Health and Safety Code.”


As so modified, the trial court’s judgments of conviction are affirmed.



                                              __________________________________________
                                              Melissa Goodwin, Justice

Before Chief Justice Rose, Justices Goodwin and Bourland

Modified and, as Modified, Affirmed

Filed: August 12, 2016

Do Not Publish




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