Sonny D. Silvas v. The State of Texas

Eastland, Texas - Criminal defense attorney represented Sonny D. Silvas with an Aggravated Assault charge

In 2011, Appellant was convicted of aggravated assault with a deadly weapon.

The jury assessed Appellant's punishment at imprisonment for thirty-five years and

a $10,000 fine. The trial court sentenced Appellant accordingly and did not mention

attorney's fees when doing so. The trial court subsequently approved the payment

of $3,000 to Appellant's court-appointed trial attorney. At the end of the written

judgment from 2011 was the following language: "Furthermore, the following

special findings or orders apply: ATTORNEY'S FEES: $3,000.00.” Appellant

appealed his conviction, and this court affirmed the judgment of the trial court. See

Silvas v. State, No. 11-11-00169-CR, 2013 WL 2641377 (Tex. App.—Eastland

June 6, 2013, no pet.) (mem. op., not designated for publication). Appellant's

attorney in that appeal filed a brief on the merits but did not raise an issue related to

attorney's fees. See id.

In 2019, Appellant filed an application for writ of habeas corpus pursuant to

Article 11.07 of the Texas Code of Criminal Procedure. See TEX.CODE CRIM. PROC.

ANN. art. 11.07 (West 2015). Appellant asserted in his application that appellate

counsel in the appeal of Appellant's conviction was ineffective because he failed to

assert that the trial court had erred in assessing $3,000 in attorney's fees. The Court

of Criminal Appeals initially issued an order indicating that additional facts were

needed on the matter and directing the trial court to make the necessary findings of

fact and conclusions of law. Ex parte Silvas, No. WR-82,005-03, 2019 WL

6139428, at *1 (Tex. Crim. App. Nov. 20, 2019) (per curiam order) (not designated

for publication). In response to the order issued by the Court of Criminal Appeals,

the trial court entered the nunc pro tunc judgment that is at issue in this appeal,

deleting the special finding of attorney's fees in the amount of $3,000. The Court of

Criminal Appeals subsequently dismissed the application for writ of habeas corpus

in Cause No. WR-82,005-03 as moot.3

After the Court of Criminal Appeals dismissed as moot Appellant's

application for writ of habeas corpus, Appellant informed this court and the trial

court that he wished to continue to pursue the present appeal in this court and that

he desired to have court-appointed counsel represent him. Accordingly, the trial

court appointed counsel to represent Appellant in this appeal. See Blanton v. State,

369 S.W.3d 894, 904 (Tex. Crim. App. 2012) (declaring that a nunc pro tunc

judgment is an appealable order from which a defendant has a right to appeal—

limited to issues arising from the entry of the nunc pro tunc judgment).

Appellant's court-appointed counsel has since filed in this court a motion to

withdraw. The motion is supported by a brief in which counsel professionally and

conscientiously examines the record and applicable law and concludes that the

appeal is frivolous and without merit. Counsel provided Appellant with a copy of

the brief, a copy of the motion to withdraw, and a copy of both the clerk's record

and the reporter's record. Counsel advised Appellant of his right to review the record

and file a response to counsel's brief. Counsel also advised Appellant of his right to

file a petition for discretionary review. See TEX. R. APP. P. 68. Court-appointed

counsel has complied with the requirements of Anders v. California, 386 U.S. 738

(1967); Kelly v. State, 436 S.W.3d 313 (Tex. Crim. App. 2014); In re Schulman, 252

S.W.3d 403 (Tex. Crim. App. 2008); and Stafford v. State, 813 S.W.2d 503 (Tex.

Crim. App. 1991).

Appellant filed a pro se motion to strike counsel's Anders brief, which this

court denied, and a pro se brief on the merits, which is also his pro se response to

counsel's Anders brief. Appellant asserts that that the entry of the nunc pro tunc

judgment was ultimately unfavorable to him and that the nunc pro tunc judgment

altered a judicial assessment of attorney's fees and did not merely correct a clerical

error. In addressing an Anders brief and a pro se response, a court of appeals may 4

only determine (1) that the appeal is wholly frivolous and issue an opinion

explaining that it has reviewed the record and finds no reversible error or (2) that

arguable grounds for appeal exist and remand the cause to the trial court so that new

counsel may be appointed to brief the issues. Schulman, 252 S.W.3d at 409;

Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim. App. 2005). Following the

procedures outlined in Anders and Schulman, we have independently reviewed the

record, and we agree with counsel that no arguable grounds for appeal exist.

1

This appeal is limited to issues arising from the entry of the nunc pro tunc

judgment. See Blanton, 369 S.W.3d at 904. Although we find no reversible error in

the nunc pro tunc judgment, we note that it contains alterations from the original

judgment that are not supported by the record. In his pro se response, Appellant

points out that the nunc pro tunc judgment changed his name from "SONNY D.

SILVAS” to "SONNY DELAO SILVAS”; changed his State Identification Number

from TX05834752 to TX-06211858; and changed the plea and the finding on a

second enhancement paragraph from "N/A” to "TRUE.” We note additionally that

the nunc pro tunc judgment changed the Incident Number/TRN from 9090927417

to 9090965092.

An appellate court has the power to modify the trial court's judgment to make

the judgment speak the truth when the appellate court has the necessary information

before it 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). Because we have the necessary information to make the

judgment speak the truth, we modify the nunc pro tunc judgment to show the name

"SONNY D. SILVAS”; to show "STATE ID No.: TX05834752”; to show "N/A” with

1

We note that Appellant has a right to file a petition for discretionary review pursuant to TEX. R.

APP. P. 68.5

respect to Appellant's plea to "2nd Enhancement Paragraph” and the trial court's

"Finding on 2nd Enhancement Paragraph”; and to show "INCIDENT NO./TRN:

9090927417.”

As modified, we affirm the trial court’s nunc pro tunc judgment.