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Date: 12-20-2020
Case Style:
Jose Alberto Alejandro-Najarro v. The State of Texas
Case Number: 03-19-00124-CR
Judge: Edward Smith
Court: TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
Plaintiff's Attorney: Ms. Rebecca Culpepper
Ms. Jennifer Feldman
Defendant's Attorney:
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Description:
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).
2
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.
2
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.
3
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.”
Outcome: As so modified, the trial court’s judgment of conviction is affirmed.
Plaintiff's Experts:
Defendant's Experts:
Comments: