Oscar Reveles Carrete v. the State of Texas

IN THE
TENTH COURT OF APPEALS

No. 10-23-00331-CR

OSCAR REVELES CARRETE,
Appellant
v.

THE STATE OF TEXAS,
Appellee

From the 13th District Court
Navarro County, Texas
Trial Court No. D41468-CR

MEMORANDUM OPINION

In an open plea to the court, Oscar Reveles Carrete pled guilty to one count of

Manufacture or Delivery of a Controlled Substance, four grams or more but less than 200

grams (Count One) and Possession of a Controlled Substance, one gram or less (Count

Two). Because the trial court erred in ordering the sentences for Count One and Count

Two to run consecutively, we reform the trial court’s judgments in each count to reflect

that the sentences run concurringly.

BACKGROUND

Carrete’s house was searched, pursuant to a warrant, and officers found six grams
of methamphetamine and one gram of cocaine. Carrete pled guilty without the benefit

of a plea bargain and, after the preparation of a pre-sentence investigation report, was

sentenced to 11 years in prison in Count One and two years in a State Jail facility in Count

Two. The trial court ordered the sentences to run consecutively.

MERITS BRIEF

Carrete’s appointed counsel initially filed a motion to withdraw and an Anders

brief in support of the motion. See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L.

Ed. 2d 493 (1967). When the State observed and briefed an error in the order stacking the

sentences, appointed counsel agreed and proposed this issue for our review.

Although this issue is presented in the context of an Anders brief, we consider the

brief as a brief on the merits and address the alleged error. See Vaughn v. State, Nos. 10-

17-00275-CR & 10-17-00276-CR, 2018 Tex. App. LEXIS 1888, **2-3 (Tex. App.—Waco Mar.

14, 2018, no pet.) (not designated for publication); Hines v. State, Nos. 10-13-00286-CR, 10-

13-00292-CR, 2014 Tex. App. LEXIS 5768, at *4 (Tex. App.—Waco May 29, 2014, pet. ref'd)

(not designated for publication). See also Cummins v. State, 646 S.W.3d 605, 614, 618-19,

n.10 (Tex. App.—Waco 2022, pet. ref'd).

ANALYSIS

Texas Penal Code section 3.03(a) expressly states that when a defendant is found

guilty of multiple offenses arising out of the same criminal episode prosecuted in a single

criminal action, the sentences for each offense “shall” run concurrently. TEX. PENAL CODE

§ 3.03(a). In this case, Carrete was found guilty of both Count One and Count Two in the

same proceeding, and, according to the record, both offenses arose out of the same

Carrete v. State Page 2
criminal episode. Therefore, we agree with the parties that the trial court should have

ordered the sentences for both counts to run concurrently, in accordance with Section

3.03(a) 1. Carrete’s issue is sustained.

CONCLUSION

An improper cumulation order may be remedied by reformation on appeal. Ex

parte Carter, 521 S.W.3d 344, 347 (Tex. Crim. App. 2017). Accordingly, the trial court’s

Judgment of Conviction by Court—Waiver of Jury Trial, Count One, signed on

September 8, 2023 is reformed to reflect on page 1 that “This Sentence Shall Run:

Concurrently (see below)[,]” and the special finding or order on page 3 of the same

judgment is reformed to reflect, “This will run concurrently with Count Two and

concurrently with D39513-CR.” Further, the trial court’s Judgment of Conviction by

Court—Waiver of Jury Trial, Count Two, signed on September 8, 2023, is reformed to

reflect on page 1 that “This Sentence Shall Run Concurrently (see below)[,]” and the

special finding or order on page 3 of the same judgment is reformed to reflect, “This count

to begin at the same time as Count One.”

As reformed, the trial court’s Judgment of Conviction by Court—Waiver of Jury

Trial, Count One, signed on September 8, 2023 and Judgment of Conviction by Court—

Waiver of Jury Trial, Count Two, signed on September 8, 2023 are affirmed as reformed.

Counsel’s motion to withdraw from representation of Carrete is dismissed as

moot. See Cummins v. State, 646 S.W.3d 605, 618 (Tex. App.—Waco 2022, pet. ref'd)

(“when appointed counsel files a motion to withdraw with a merits brief or when counsel

1
Subsection (a) provides for some exceptions to this “rule,” but none apply in this case.
Carrete v. State Page 3
has filed an Anders brief that is not really an Anders brief, but rather a merits brief, we

have dismissed appointed counsel's motion to withdraw as moot.”).

TOM GRAY
Chief Justice

Before Chief Justice Gray,
Justice Johnson, and
Justice Smith
Affirmed as reformed
Motion dismissed
Opinion delivered and filed June 20, 2024
Do not publish
[CR25]

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