Gamez, Heidi Lynn v. State ( 2002 )

  Opinion issued December 5, 2002

In The

Court of Appeals

For The

First District of Texas

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NO. 01-01-01090-CR

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HEIDI LYNN GAMEZ, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 185th District Court

Harris County, Texas

Trial Court Cause No. 871414

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MEMORANDUM OPINION

A jury found appellant guilty of possession of less than one gram of cocaine. The court assessed punishment at two years' confinement in state jail, probated for four years, and a fine of $500. Timely notice of appeal was filed, and appellant posted an appeal bond.

We granted a motion to abate the appeal for an indigency hearing that was filed by appellant's counsel. On June 20, 2002, the trial court conducted the hearing at which appellant, her counsel, and a representative of the State were present. The trial court found appellant not to be indigent. The court also ordered preparation of the appellate record, and ordered appellant pay for it in monthly installments.

We reinstated the appeal on July 18, 2002, and ordered the reporter's record due on August 16, 2002. The reporter's record was filed on July 30, 2002.

On July 22, 2002, appellant's counsel filed a motion to withdraw on the basis of nonpayment. We granted the motion on August 15, 2002. In the same order, we notified appellant that her brief was due on September 16, 2002, and that if neither the brief nor a proper motion for extension of time was filed in this Court on or before that date, the appeal would be set for submission and considered without briefs on the record alone. See Tex. R. App. P. 38.8(b)(4). No brief was filed.

On October 8, 2002, we received from appellant a letter stating that she expected to have representation by October 14. As of this date, no brief has been filed and no counsel has entered an appearance on appellant's behalf since we granted former counsel's motion to withdraw in August.  

We may consider an appeal without briefs if the trial court has found that the appellant is not indigent, but has not made the necessary arrangements for filing a brief. See Tex. R. App. P. 38.8(b)(4). Accordingly, we consider this appeal without briefs.  

There is nothing but the record presented for review. We have reviewed the record for fundamental error and find none. See Ashcraft v. State, 802 S.W.2d 905, 906 (Tex. App.--Fort Worth 1991, no pet.); Meza v. State, 742 S.W.2d 708, 708-09 (Tex. App.--Corpus Christi 1987, no pet.).  

We do find nonfundamental error in the trial court's judgment. It reflects that appellant pleaded guilty. However, the record is otherwise clear that she pleaded not guilty to a jury. This Court may correct and reform the judgment of the court below to make the record speak the truth when we have the necessary data and information to do so, or make any appropriate order as the law and the nature of the case may require. Campbell v. State, 900 S.W.2d 763, 773 (Tex. App.--Waco 1995, no pet.); Tex. R. App. P. 43.2(b), 43.6.

Accordingly, we modify the trial court's judgment to read that the appellant entered a plea of "not guilty."

The judgment is affirmed, as modified.

All pending motions are denied.

PER CURIAM

Panel consists of Justices Nuchia, Jennings, and Radack.

Do not publish. Tex. R. App. P. 47.