Opinion issued March 16, 2023

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-20-00109-CR

———————————

JORGE MONTALVO, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 174th District Court

Harris County, Texas

Trial Court Case No. 1526956

MEMORANDUM OPINION

After appellant, Jorge Montalvo, without an agreed punishment 

recommendation from the State, pleaded guilty to the first-degree felony offense of 
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murder,

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the trial court assessed his punishment at confinement for forty years. 

Appellant timely filed a notice of appeal.

Appellant’s appointed counsel on appeal has filed a motion to withdraw, along 

with a brief stating that the record presents no reversible error and the appeal is 

without merit and is frivolous. See Anders v. California, 386 U.S. 738 (1967). 

We modify the trial court’s judgment and affirm the judgment as modified.

Background

On September 24, 2019, appellant pleaded guilty to the first-degree felony 

offense of murder. In connection with his guilty plea, appellant executed a “Waiver 

of Constitutional Rights, Agreement to Stipulate, and Judicial Confession.” In this 

waiver, appellant confessed to the allegations against him in the indictment and

stipulated that he was “satisfied with the attorney representing [him],” his attorney 

“properly represented [him] and [he] has fully discussed the case with [his 

attorney],” and the “State agree[d] to waive its right to a jury trial in exchange for . 

. . [appellant’s] agree[ment] to waive his right of appeal.” 

Also on September 24, 2019, appellant executed written “Admonishments.” 

In this document, appellant acknowledged that he understood the range of 

punishment for a first-degree felony offense is a term of life incarceration, or any 

term not more than 99 years or less than fifteen years. Appellant also acknowledged 

1 See TEX. PENAL CODE ANN. § 19.02. 
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that he understood “the admonishments of the trial court set out” in the document, 

he “waive[d] the right to have the trial court orally admonish” him, his “plea [was] 

freely, knowingly and voluntarily made,” he was “totally satisfied with the 

representation provided by [his] counsel and [he] received effective and competent 

representation,” and he “fully [understood] the consequences of [his] plea.” Further, 

“after having fully consulted with [his] attorney . . . [appellant] . . . request[ed] that 

the trial court accept [his] plea.”

Finally, and also on September 24, 2019, the trial court entered its first 

certification of appellant’s right of appeal. See TEX. R. APP. P. 25.2. Based on the 

above-discussed waivers and admonishments, the trial court checked the box 

indicating that appellant had “waived the right of appeal.” This certification was 

signed by the trial court, appellant, and appellant’s court-appointed trial counsel.

At the punishment hearing, appellant’s counsel notified the trial court that 

appellant indicated that it was his desire to “withdraw his plea of guilty and instead 

go to trial on this case.” The trial court noted that, during the plea hearing, appellant 

“never indicated in any kind of way that he felt pressured or coerced into this plea,” 

and stated that it would “not let [appellant] now withdraw a plea that the [trial court] 

believe[d] he freely, knowingly, and voluntarily entered into,” where “there [was]

no suggestion or any kind of statement from [appellant] to indicate or suggest that 
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there[] [was] some new evidence that’s just been revealed that would show 

[appellant] is not guilty after he’s entered this plea of guilty.”

However, the trial court also advised appellant that, “[i]f [appellant] would 

like to appeal after this, [he] can do everything [he] need[s] to do to effect an appeal.” 

Because the trial court’s statement was inconsistent with the trial court’s first 

certification of appellant’s right to appeal, signed on September 24, 2019, which 

stated that appellant had waived his right of appeal, appellant filed a motion to abate 

the appeal so that the inconsistency could be resolved. See Burt v. State, 445 S.W.3d 

752, 757 (Tex. Crim. App. 2014). Accordingly, on July 14, 2020, the Court abated 

this appeal and directed the trial court to make a finding clarifying its intention, or 

not, to grant appellant permission to appeal, and, if necessary, to execute an amended 

certification of appellant’s right to appeal. See TEX. R. APP. P. 25.2(f).

On August 9, 2021, a supplemental clerk’s record was filed with this Court. 

The supplemental clerk’s record included an amended certification of appellant’s 

right of appeal. See id. The amended certification indicated that this “is a pleabargain case, but the trial court has given permission to appeal, and the [appellant] 

has the limited right of appeal to matters raised during the sentencing hearing and 

ruled on” by the trial court. Based on the amended certification, granting appellant 

a limited right of appeal, the Court reinstated the appeal. Appellant’s appointed 

appellate counsel subsequently filed a motion to withdraw and an Anders brief.
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Anders Procedures

When appointed counsel believes a criminal defendant’s appeal is frivolous, 

counsel may file both a motion to withdraw and a brief stating that the record 

presents no reversible error and the appeal is without merit and is frivolous. See

Anders, 386 U.S. at 741–42; In re Schulman, 252 S.W.3d 403, 406 (Tex. Crim. App. 

2008). Counsel’s brief meets the Anders requirements by presenting a professional 

evaluation of the record and supplying the Court with references to the record and 

legal authority. See Anders, 386 U.S. at 744; see also High v. State, 573 S.W.2d 

807, 812 (Tex. Crim. App. 1978). Counsel indicatesthat he has thoroughly reviewed 

the record and is unable to advance any grounds of error that warrant reversal. See 

Anders, 386 U.S. at 744; Mitchell v. State, 193 S.W.3d 153, 155 (Tex. App.—

Houston [1st Dist.] 2006, no pet.).

Counsel has informed the Court that he provided appellant with a copy of the 

brief and the motion to withdraw as well as a complete copy of the appellate record. 

See Kelly v. State, 436 S.W.3d 313, 319–20 (Tex. Crim. App. 2014); In re Schulman, 

252 S.W.3d at 408. Counsel also provided appellant with form motion to access the 

appellate record, and counsel advised appellant of his right to file a pro se response 
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to the Anders brief.2 See Kelly, 436 S.W.3d at 319–20; In re Shulman, 252 S.W.3d 

at 408. On February 21, 2023, appellant filed a pro se response to counsel’s brief.

We have independently reviewed the entire record in this appeal, and we 

conclude that no reversible error exists in the record, there are no arguable grounds 

for review, and the appeal is frivolous. See Anders, 386 U.S. at 744 (emphasizing 

that reviewing court—and not counsel—determines, after full examination of 

proceedings, whether appeal is wholly frivolous); Garner v. State, 300 S.W.3d 763, 

767 (Tex. Crim. App. 2009) (reviewing court must determine whether arguable 

grounds for review exist); Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim. 

App. 2005) (same); Mitchell, 193 S.W.3d at 155 (reviewing court determines 

whether arguable grounds exist by reviewing entire record). We note that an 

appellant may challenge a holding that there are no arguable grounds for appeal by 

filing a petition for discretionary review in the Texas Court of Criminal Appeals. 

See Bledsoe, 178 S.W.3d at 827 & n.6.

2 This Court also notified appellant that counsel had filed an Anders brief and a 

motion to withdraw and informed appellant that he had a right to examine the 

appellate record and file a response to his counsel’s Anders brief. And this Court 

provided appellant with a form motion to access the appellate record. See Kelly v. 

State, 436 S.W.3d 313, 319–22 (Tex. Crim. App. 2014); In re Schulman, 252 

S.W.3d 403, 408 (Tex. Crim. App. 2008).
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Modification of Judgment

In appointed counsel’s Anders brief, counsel requests that the Court modify 

the trial court’s judgment “to delete the special finding [of] ‘APPEAL WAIVED, 

NO PERMISSION TO APPEAL GRANTED’.” As discussed above, while the trial 

court’s judgment accurately reflected the state of the case as of the time appellant 

entered his guilty plea, after the trial court entered its amended certification, granting 

appellant a limited right of appeal, the judgment is no longer accurate. 

While we have concluded that appellant’s appeal is frivolous, an appellate 

court has the power to correct and reform a trial court’s judgment to make the record 

speak the truth when it has the necessary data and information to do so. See Nolan 

v. State, 39 S.W.3d 697, 698 (Tex. App.—Houston [1st Dist.] 2001, no pet.); see 

also TEX. R. APP. P. 43.2(b). This is true no matter who, or if anyone, has called the 

matter to the attention of the trial court. See Asberry v. State, 813 S.W.2d 526, 529 

(Tex. App.—Dallas 1991, pet ref’d) (“The authority of an appellate court to reform 

incorrect judgments is not dependent upon the request of any party, nor does it turn 

on the question of whether a party has or has not objected in the trial court.”).

Accordingly, we modify the trial court’s judgment to delete, under the section, 

“[f]urthermore, the following special findings or orders apply,” the words: 

“APPEAL WAIVED. NO PERMISSION TO APPEAL GRANTED.” See TEX. R.

APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27–28 (Tex. Crim. App. 1993); see 
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also Lopez v. State, No. 01-14-00637-CR, 2016 WL 1600269, at *2 (Tex. App.—

Houston [1st Dist.] Apr. 21, 2016, no pet.) (mem. op., not designated for publication)

(modifying judgment to remove “special finding that state[d] ‘APPEAL WAIVED. 

NO PERMISSION TO APPEAL GRANTED” in Anders case).

Conclusion

We affirm the trial court’s judgment, as modified, and grant appellant’s 

appointed counsel’s motion to withdraw.3 See TEX. R. APP. P. 43.2(f); see Morris v. 

State, 496 S.W.3d 833, 836 (Tex. App.—Houston [1st Dist.] 2016, pet. ref’d) (“An 

appellate court has the power to correct a trial court judgment to make the record 

speak the truth when it has the necessary date and information to do so.”). Attorney 

Nicholas Mensch must immediately send appellant the required notice and file a 

copy of the notice with the Clerk of this Court. See TEX. R. APP. P. 6.5(c). We 

dismiss any pending motions as moot.

PER CURIAM

Panel consists of Justices Hightower, Rivas-Molloy, and Farris.

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

3 Appellant’s appointed counsel still has a duty to inform appellant of the result of 

this appeal and that he may, on his own, pursue discretionary review in the Texas 

Court of Criminal Appeals. See Ex Parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. 

App. 1997).