Maxwell Lynn Jordan v. State ( 2019 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-18-00404-CR
Maxwell Lynn JORDAN,
Appellant
v.
The STATE of Texas,
Appellee
From the 187th Judicial District Court, Bexar County, Texas
Trial Court No. 2015CR1752
Honorable Joey Contreras, Judge Presiding
Opinion by: Patricia O. Alvarez, Justice
Sitting: Rebeca C. Martinez, Justice
Patricia O. Alvarez, Justice
Liza A. Rodriguez, Justice
Delivered and Filed: April 10, 2019
AFFIRMED AS MODIFIED
Appellant appeals from an order adjudicating his guilt, revoking his community super-
vision, and sentencing him to fourteen-years’ confinement and a fine. Having reviewed counsel’s
Anders brief, Appellant’s pro se brief, and the record, we affirm the trial court’s judgment.
BACKGROUND
Appellant Maxwell Lynn Jordan was charged by indictment with one count of aggravated
assault with a deadly weapon. Under a plea agreement, he pled nolo contendere to the charge. In
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August 2015, the trial court deferred adjudication, placed him on community supervision for a
period of five years, imposed a $2,000 fine, and ordered restitution of $1,600.
The State moved to revoke his community supervision and adjudicate his guilt. At a
hearing on the motion to revoke, Jordan pled true to violating conditions 2 and 5 of his community
supervision. The trial court found that Jordan had violated the terms of his community supervision.
It adjudicated him guilty, revoked his community supervision, and sentenced Jordan to
confinement in the Texas Department of Criminal Justice—Institutional Division for a period of
fourteen years, with credit for time served.
Jordan timely filed a pro se notice of appeal. The trial court appointed appellate counsel,
and court-appointed counsel filed an Anders brief. Jordan also filed a pro se brief.
COURT-APPOINTED APPELLATE COUNSEL’S ANDERS BRIEF
Jordan’s appellate counsel filed a brief containing a professional evaluation of the record
in accordance with Anders v. California, 386 U.S. 738 (1967); counsel also filed a motion to
withdraw. In the brief, counsel recites the relevant facts with citations to the record.
Counsel reviewed the entire record, including the hearing on the State’s motion to revoke.
Counsel asserts that Jordan was represented by counsel at the hearing, was of sound mind, and
pled true to violating two conditions of his community supervision. The trial court found that
Jordan had violated those conditions, and counsel notes Jordan’s plea of true is sufficient evidence
to support the trial court’s revocation order. Counsel observed that Jordan’s sentence was roughly
in the middle of the sentencing range and it provides no basis for an appeal. Counsel also
considered whether trial counsel provided ineffective assistance or there were any jurisdictional
defects.
Based on her review, counsel determined that there are no arguable errors in the trial court’s
revocation of Jordan’s community supervision, its adjudication of his guilt, or its sentence imposed
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on Jordan. Counsel concludes Jordan’s appeal is frivolous and without merit. See Nichols v. State,
954 S.W.2d 83, 85 (Tex. App.—San Antonio 1997, no pet.).
We conclude appellate counsel’s brief meets the Anders requirements. See Anders, 386
U.S. at 744; see also High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel Op.] 1978);
Gainous v. State, 436 S.W.2d 137, 138 (Tex. Crim. App. 1969). Counsel provided Jordan with a
copy of the brief and counsel’s motion to withdraw, and informed Jordan of his right to review the
record and file a pro se brief. See Nichols, 954 S.W.2d at 85–86; see also Bruns v. State, 924
S.W.2d 176, 177 n.1 (Tex. App.—San Antonio 1996, no pet.). Counsel advised Jordan of his right
to request a copy of the record and provided Jordan with a motion to request a copy of the record
that lacked only the date and Jordan’s signature. See Kelly v. State, 436 S.W.3d 313, 319–20 (Tex.
Crim. App. 2014). Jordan received a copy of the record and filed a pro se brief.
APPELLANT’S PRO SE BRIEF
In his pro se brief, Jordan raises six issues. He contends the State withheld Brady material,
the prosecutor made improper and inaccurate comments during the plea agreement hearing, the
trial court erred by denying his motion for new trial from the plea agreement hearing, he was
denied a separate punishment hearing, he received ineffective assistance of counsel during the
hearing on the State’s motion to revoke, and there are defects in the appellate record. Jordan’s pro
se brief presents no arguable grounds for appeal.
CLERICAL ERROR IN JUDGMENT
As part of our review, we observed that the judgment does not conform to the trial court’s
sentence pronounced in open court. See Thompson v. State, 108 S.W.3d 287, 290 (Tex. Crim.
App. 2003) (“When there is a conflict between the oral pronouncement of sentence in open court
and the sentence set out in the written judgment, the oral pronouncement controls.”). At the
sentencing hearing, the trial court ordered restitution of $1,600.00, but the trial court’s judgment
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orders restitution of $16,000.00. The written judgment is inaccurate and must be modified. See
TEX. R. APP. P. 43.2(b) (modifying judgments); Thompson, 108 S.W.3d at 290 (“The solution in
those cases in which the oral pronouncement and the written judgment conflict is to reform the
written judgment to conform to the sentence that was orally pronounced.”); Morris v. State, 496
S.W.3d 833, 835–36 (Tex. App.—Houston [1st Dist.] 2016, pet. ref’d) (quoting Asberry v. State,
813 S.W.2d 526, 529 (Tex. App.—Dallas 1991, pet. ref’d) (“Appellate courts have the power to
reform whatever the trial court could have corrected by a judgment nunc pro tunc where the
evidence necessary to correct the judgment appears in the record.”).
We modify the first page of the trial court’s Judgment Adjudicating Guilt dated May 31,
2018, as follows: under the heading “Restitution:” we delete the text “$16,000.00” and we insert
the text “$1,600.00.” See Thompson, 108 S.W.3d at 290; Morris, 496 S.W.3d at 835–36. We
make no other changes to the judgment.
CONCLUSION
Having reviewed the entire record, the Anders brief, and the pro se brief, we conclude that
there are no arguable grounds for appeal and the appeal is wholly frivolous and without merit. See
Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim. App. 2005). We affirm the trial court’s
judgment as modified and we grant appellate counsel’s motion to withdraw. See Nichols, 954
S.W.2d at 85–86; Bruns, 924 S.W.2d at 177 n.1.
No substitute counsel will be appointed. Should Appellant wish to seek further review of
this case by the Court of Criminal Appeals, he must file a petition for discretionary review either
through a retained attorney or by representing himself. Any petition for discretionary review must
be filed within thirty days from the date of either (1) this opinion or (2) the last timely motion for
rehearing or motion for en banc reconsideration is overruled by this court. See TEX. R. APP.
P. 68.2. Any petition for discretionary review must be filed with the clerk of the Court of Criminal
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Appeals. Id. R. 68.3(a). Any petition for discretionary review must comply with the requirements
of Rule 68.4 of the Texas Rules of Appellate Procedure. Id. R. 68.4.
Patricia O. Alvarez, Justice
DO NOT PUBLISH
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