Jose Alberto Alejandro-Najarro v. The State of Texas

Austin, TX - Criminal defense attorney represented Jose Alberto Alejandro-Najarro with a Aggravated Sexual Assault charge.

The trial evidence showed that shortly after N.A. turned thirteen, she discovered that

she was pregnant. At that time, she disclosed that appellant had engaged in sexual activity with

her. The pregnancy was terminated, and subsequent DNA comparisons of the fetal tissue, N.A.,

and appellant demonstrated that appellant could not be excluded as the biological father of the

child. The DNA test results showed the probability of paternity for appellant was at least

99.999% (with diminutive variations depending on the population of comparison).

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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 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 this Court ordered the

clerk of the trial court to provide the appellate record to appellant and provide written

verification to this Court that the record was provided to appellant, which the clerk did. See

Kelly, 436 S.W.3d at 321. After this Court granted multiple requests for extensions of time to

file a response, appellant filed a pro se response but did not identify any meritorious grounds for

appellate review.2

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

the trial proceedings below, appellate counsel’s brief, and appellant’s pro se response—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 appeal is frivolous. Counsel’s

motion to withdraw is granted.

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In his pro se response, appellant complains that he was unaware that he could file a

pretrial objection to the indictment; he challenges the sufficiency of the evidence supporting his

conviction; he criticizes appellate counsel for concluding that the record does not support a claim

of ineffective assistance of trial counsel; and he argues that his sentence and fine constitute cruel

and unusual punishment and are unconstitutional because they violate constitutional guarantees

of due process and equal protection of the law.

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However, through our independent review of the record, we observe that the trial

court’s written judgment of conviction contains non-reversible clerical error. The judgment

states that the “Statute for Offense” is “22.021(a)(2)(B) Penal Code.” This statutory provision

establishes that the offense of sexual assault of a child is aggravated sexual assault of a child

when the offense is perpetrated against a victim younger than fourteen years of age, which is the

case here as N.A. was twelve at the time of the offense. However, the applicable statutory

provisions for the offenses of aggravated sexual assault of a child for which appellant was

convicted also include section 22.021(a)(1)(B)(i) of the Penal Code, the statutory provision that

defines the offense of aggravated sexual assault of a child as charged in this case.

This Court has authority to modify incorrect judgments when the necessary

information is available to do so. See Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26,

27–28 (Tex. Crim. App. 1993). Accordingly, we modify the judgment of conviction to reflect

that the “Statute for Offense” is “22.021(a)(1)(B)(i), (2)(B) Penal Code.”

As so modified, the trial court’s judgment of conviction is affirmed.