Mark Anthony Robinson v. State ( 2014 )

IN THE
TENTH COURT OF APPEALS
No. 10-13-00304-CR
No. 10-13-00305-CR
MARK ANTHONY ROBINSON,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the County Court at Law No. 2
McLennan County, Texas
Trial Court Nos. 20121594CR2 and 20121596CR2
MEMORANDUM OPINION
In these two cases, which were tried together in a bench trial with Appellant
Mark Anthony Robinson representing himself, Robinson was convicted of the
misdemeanor offenses of possession of marihuana in the amount of two ounces or less
and possession of a controlled substance (hydrocodone) in an amount of less than 28
grams. The trial court found Robinson guilty and assessed jail sentences of 180 days
and 365 days, respectively, with the sentences to be served concurrently and with credit
for time served.
Robinson’s appointed appellate counsel has filed a motion to withdraw and an
Anders brief in each case, asserting that he has diligently reviewed the appellate records
and that, in his opinion, the appeals are frivolous. See Anders v. California, 386 U.S. 738,
87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967). Although informed of his right to do so, Robinson
did not file pro se responses to the Anders briefs. The State did not file a brief in either
case.
In an Anders case, we must, “after a full examination of all the proceedings, []
decide whether the case is wholly frivolous.” Id. at 744, 87 S.Ct. at 1400; accord Stafford v.
State, 813 S.W.2d 503, 509-11 (Tex. Crim. App. 1991). An appeal is “wholly frivolous” or
“without merit” when it “lacks any basis in law or fact.” McCoy v. Court of Appeals, 486
U.S. 429, 439 n.10, 108 S. Ct. 1895, 1902 n.10, 100 L. Ed. 2d 440 (1988).
No. 10-13-00304-CR (Trial Court No. 20121594CR)
We have conducted an independent review of the record, and because we find
this appeal to be wholly frivolous, we affirm the judgment. We grant appointed
counsel’s motion to withdraw from representation of Robinson in this appeal.
Notwithstanding this grant, appointed counsel must send Robinson a copy of our
decision, notify him of his right to file a pro se petition for discretionary review, and
send this Court a letter certifying counsel’s compliance with Texas Rule of Appellate
Procedure 48.4. TEX. R. APP. P. 48.4; see also Ex parte Owens, 206 S.W.3d 670, 673-74 (Tex.
Crim. App. 2006).
Robinson v. State Page 2
No. 10-13-00305-CR (Trial Court No. 20121596CR)
Despite concluding that these appeals are frivolous, Robinson’s appointed
counsel notes the following error in the judgment in No. 10-13-00305-CR (Trial Court
No. 20121596CR): The written judgment incorrectly states a sentence of 180 days in jail,
yet the trial court orally pronounced a sentence of 365 days in jail.
In Ferguson v. State, No. 10-13-00173-CR, ___ S.W.3d ___, 2014 WL 895196 (Tex.
App.—Waco Mar. 6, 2014, no pet. h.), appellant’s counsel filed an Anders brief stating
that there was no reversible error but noting that there was an error in the judgment
regarding the victim’s age at the time of the offense. Id., ___ S.W.3d at ___, 2014 WL
895196, at *1-2. Under those circumstances, we modified the judgment and affirmed the
judgment as modified. Id., ___ S.W.3d at ___, 2014 WL 895196, at *3. In a concurring
opinion joined by Justice Davis, Chief Justice Gray noted that counsel’s Anders brief was
actually a brief on the merits because it had pointed out and briefed an error in the
judgment. Id., ___ S.W.3d at ___, 2014 WL 895196, at *5; see also Hines v. State, No. 10-13-
00286-CR, 2014 WL 2466562, at *2 (Tex. App.—Waco May 29, 2014, no pet. h.) (mem.
op., not designated for publication) (adopting Chief Justice Gray’s position).
This case is like Ferguson: Despite finding no reversible error, counsel has
identified an error in the judgment.1 We will therefore treat the brief in that appeal as a
brief on the merits and address the error.2 See Hines, 2014 WL 2466562, at *2.
1
We have conducted an independent review of the records, and we agree that no reversible error exists
in this appeal.
2
Accordingly, counsel’s motion to withdraw in No. 10-13-00305-CR is dismissed as moot.
Robinson v. State Page 3
It is mandatory that in a case such as this, a defendant’s sentence must be
pronounced orally in his presence. TEX. CODE CRIM. PROC. ANN. art. 42.03, § 1(a) (West
Supp. 2013); Taylor v. State, 131 S.W.3d 497, 500 (Tex. Crim. App. 2004); Ex parte
Madding, 70 S.W.3d 131, 135 (Tex. Crim. App. 2002). The judgment, including the
sentence assessed, is just the written declaration and embodiment of that oral
pronouncement. TEX. CODE CRIM. PROC. ANN. art. 42.01, § 1 (West Supp. 2013); Taylor,
131 S.W.3d at 500; Madding, 70 S.W.3d at 135. When there is a conflict between the oral
pronouncement of sentence and the sentence in the written judgment, the oral
pronouncement controls. Taylor, 131 S.W.3d at 500; Thompson v. State, 108 S.W.3d 287,
290 (Tex. Crim. App. 2003); Madding, 70 S.W.3d at 135; Coffey v. State, 979 S.W.2d 326,
328 (Tex. Crim. App. 1998).
Accordingly, we modify the judgment to reflect punishment by confinement in
the McLennan County Jail for a term of 365 days. We affirm the judgment as modified.
REX D. DAVIS
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
(Justice Scoggins concurs without opinion)
Affirmed (No. 10-13-00304-CR)
Affirmed as modified (No. 10-13-00305-CR)
Opinion delivered and filed June 19, 2014
Do not publish
[CR25]
Robinson v. State Page 4