Miles Flores Pena v. the State of Texas

NUMBER 13-24-00286-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

MILES FLORES PENA, Appellant,

v.

THE STATE OF TEXAS, Appellee.

ON APPEAL FROM THE 92ND DISTRICT COURT
OF HIDALGO COUNTY, TEXAS

MEMORANDUM OPINION

Before Chief Justice Tijerina and Justices West and Fonseca
Memorandum Opinion by Justice Fonseca

Appellant Miles Flores Pena pleaded guilty to aggravated sexual assault of a child

less than fourteen years of age by penetration of the mouth with his sexual organ, a first-

degree felony (Count Two), and to assault of a family or household member by impeding

the normal breathing or circulation of the blood, a third-degree felony (Count Six). See

TEX. PENAL CODE ANN. §§ 22.021(a)(1)(B)(ii), 22.01(b)(2)(B). On April 26, 2024, the trial
court adjudicated appellant guilty, sentenced him to thirty-five years’ imprisonment for

Count Two and ten years’ imprisonment for Count Six, and ordered the sentences to run

concurrently with credit for time served.

On May 23, 2024, appellant filed a pro se notice of appeal. Shortly thereafter,

appellant’s trial counsel filed a motion to withdraw and for appointment of appellate

counsel. The motion was granted. Appellant’s court-appointed appellate counsel has filed

a brief stating that there are no arguable grounds for appeal. See Anders v. California,

386 U.S. 738 (1967). We affirm as modified.

I. ANDERS BRIEF

Counsel states in his brief that he has diligently reviewed the entire record and that

“there are no meritorious issues to raise on appeal.” See id.; High v. State, 573 S.W.2d

807, 813 (Tex. Crim. App. [Panel Op.] 1978). Counsel’s brief meets the requirements of

Anders as it presents a thorough, professional evaluation showing why there are no

arguable grounds for advancing an appeal. See In re Schulman, 252 S.W.3d 403, 407

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.”); Stafford v. State, 813 S.W.2d 503, 510 n.3 (Tex. Crim. App. 1991).

In compliance with Kelly v. State, 436 S.W.3d 313, 319 (Tex. Crim. App. 2014),

counsel has carefully discussed why, under controlling authority, there is no reversible

error in the trial court’s judgment. Counsel has informed this Court that he has: (1) notified

appellant that he has filed an Anders brief and motion to withdraw; (2) provided appellant

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with copies of these pleadings; (3) informed appellant of his rights to file a pro se

response,1 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 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. In this case, appellant did not file a motion seeking pro se

access to the appellate record and did not file a pro se response.

II. INDEPENDENT REVIEW

Upon receiving an Anders brief, we must conduct a full examination of all the

proceedings to determine whether the appeal is wholly frivolous. Penson v. Ohio, 488

U.S. 75, 80 (1988). We have reviewed the record and counsel’s brief, and we have found

no arguable reversible error. Bledsoe v. State, 178 S.W.3d 824, 827–28 (Tex. Crim. App.

2005) (“Due to the nature of Anders briefs, by indicating in the opinion it considered the

issues raised in the brief 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 509.

III. MOTION TO WITHDRAW

In accordance with Anders, appellant’s court-appointed appellate counsel has filed

a motion to withdraw. See Anders, 386 U.S. at 744; see also In re Schulman, 252 S.W.3d

1 An appellant’s pro se response following the filing of an Anders brief “need not comply with the

rules of appellate procedure in order to be considered[; r]ather, the response should identify for the court
those issues which the indigent appellant believes the court should consider in deciding whether the case
presents any meritorious issues.” In re Schulman, 252 S.W.3d 403, 409 n.23 (Tex. Crim. App. 2008).

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at 408 n.17 (citing Jeffery v. State, 903 S.W.2d 776, 779–80 (Tex. App.—Dallas 1995, no

pet.) (“If an attorney believes the appeal is frivolous, he must withdraw from representing

the appellant. To withdraw from representation, the appointed attorney must file a motion

to withdraw accompanied by a brief showing the appellate court that the appeal is

frivolous.” (citations omitted))). We grant the motion to withdraw.

Counsel is ordered to send a copy of this memorandum opinion and its

accompanying judgment to appellant, and to advise him of his right to file a petition for

discretionary review, within five days of the date of this memorandum opinion.2 See TEX.

R. APP. P. 48.4; see also In re Schulman, 252 S.W.3d at 412 n.35; Ex parte Owens, 206

S.W.3d 670, 673 (Tex. Crim. App. 2006).

IV. MODIFICATION OF JUDGMENT

While appellant raises no reversible error, he alleges that the judgment contained

two clerical errors, namely, misidentifying the subsection of the statute appellant was

convicted under and miscalculating the proper amount of time served. Appellant asks us

to modify the judgment to correct the errors.

We have the discretion to the modify the judgment to make the record speak the

truth. TEX. R. APP. P. 43.2(b). If the evidence necessary to correct a judgment appears in

the record, we can reform what a trial court could have corrected by a judgment nunc pro

2 No substitute counsel will be appointed. Should appellant wish to seek further review 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 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 id. at 68.3(a), and must comply with the requirements of Rule 68.4
of the Texas Rules of Appellate Procedure. See id. at 68.4.

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tunc such as making sure the judgment refers to the proper subsection of a statute

pertaining to the convicted offense. See Asberry v. State, 813 S.W.2d 526, 529 (Tex.

App.—Dallas 1991, pet. ref’d); see also Smith v. State, No. 11-22-00224-CR, 2024 WL

628920, at *4 (Tex. App.—Eastland Feb. 15, 2024, no pet.) (mem. op., not designated for

publication). Clerical errors are those that do not involve the exercise of judicial reasoning

or determination. In re Dryden, 52 S.W.3d 257, 262 (Tex. App.—Corpus Christi–Edinburg

2001, no pet.).

We may correct a clerical error for time credited towards a defendant’s sentence

when the record clearly shows that the defendant is entitled to additional days of credit.

See In re L.G.G., 398 S.W.3d 852, 863 (Tex. App.—Corpus Christi–Edinburg 2012, no

pet.). Here, the judgment credited appellant with 1,427 days served. However, the record

clearly indicated appellant was arrested on May 29, 2020, and judgment was imposed on

April 26, 2024. Therefore, appellant is entitled to credit for 1,428 days served.3 We modify

the judgment accordingly.

Similarly, the judgment lists the “statute for offense” as Texas Penal Code

§ 22.021(a)(2)(B); however, appellant asserts he pled guilty to Texas Penal Code

§ 22.021(a)(1)(B)(ii). See TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(ii). The record reflects

that Count Two of the indictment alleged elements under both § 22.021(a)(1)(B)(ii) and

§ 22.021(a)(2)(B), and as part of his guilty plea, appellant stipulated to the truth of these

allegations. We accordingly modify the judgment to reflect that the “statute for offense” is

Texas Penal Code § 22.021. See TEX. PENAL CODE ANN. § 22.021.

3 The State has not filed a responsive brief in this case.

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V. CONCLUSION

The trial court’s judgment is affirmed as modified.

YSMAEL D. FONSECA
Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed on the
17th day of July, 2025.

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