Kevin Odell v. State ( 2015 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-15-00073-CR
Kevin ODELL,
Appellant
v.
The STATE
The STATE of Texas,
Appellee
From the 186th Judicial District Court, Bexar County, Texas
Trial Court No. 2010CR10875
Honorable Jefferson Moore, Judge Presiding
Opinion by: Karen Angelini, Justice
Sitting: Sandee Bryan Marion, Chief Justice
Karen Angelini, Justice
Jason Pulliam, Justice
Delivered and Filed: September 2, 2015
AFFIRMED AS MODIFIED
Appellant Kevin Odell was indicted for driving while intoxicated, third offense or more.
After entering a plea of nolo contendere, Odell was placed on community supervision for a period
of eight years with a $2,000 fine pursuant to a plea-bargain agreement. On June 4, 2014, the State
moved to revoke his community supervision. On January 14, 2015, Odell pled true to having
violated the terms and conditions of his community supervision, and the trial court revoked his
community supervision and sentenced him to four years of imprisonment. At the sentencing
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hearing, the trial court explicitly stated that “[t]here is no fine.” Nevertheless, the written judgment
imposed a $2,000 fine. Odell then filed a notice of appeal.
His court-appointed appellate attorney filed a brief in which he concludes that there are no
meritorious issues present for review. See Anders v. California, 386 U.S. 738 (1967); High v. State,
573 S.W.2d 807 (Tex. Crim. App. 1978). However, counsel notes that the judgment should be
reformed to delete the erroneous recitation that Odell’s sentence includes a $2,000 fine. See Taylor
v. State, 131 S.W.3d 497, 500 (Tex. Crim. App. 2004) (explaining that when there is a conflict
between the oral pronouncement of sentence and the sentence in the written judgment, the oral
pronouncement controls). Counsel also states that Odell was provided with a copy of the brief and
motion to withdraw and was further informed of his right to review the record and file his own
brief. See Bruns v. State, 924 S.W.2d 176, 177 n.1 (Tex. App.—San Antonio 1996, no pet.). Odell
did not file a pro se brief, but did file a letter.
We have reviewed the record, counsel’s brief, and Odell’s letter. We agree that the appeal
is frivolous and without merit. However, because the trial court’s judgment erroneously recited the
$2,000 fine, we modify the trial court’s judgment to delete the $2,000 fine. See Ferguson v. State,
435 S.W.3d 291, 293-94 (Tex. App.—Waco 2014, pet. stricken) (explaining that appellate courts
have the authority in Anders cases to reform judgments and affirm as modified where the error is
not reversible). We affirm the judgment as modified.
Furthermore, we grant counsel’s motion to withdraw. See Nichols v. State, 954 S.W.2d 83,
85-86 (Tex. App.—San Antonio 1997, no pet.); Bruns, 924 S.W.2d at 177 n.1.
No substitute counsel will be appointed. Should Odell wish to seek further review of this
case 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 later of (1) the date of this opinion; or (2) the date
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the last timely motion for rehearing is overruled by this court. See TEX. R. APP. P. P. 68.2. Any
petition for discretionary review must be filed in the Texas Court of Criminal Appeals. See TEX.
R. APP. P. 68.3. Any petition for discretionary review should comply with the requirements of Rule
68.4 of the Texas Rules of Appellate Procedure. See TEX. R. APP. P. 68.4.
Karen Angelini, Justice
Do not publish
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