Gregory Lewis Martinez v. State ( 2014 )

AFFIRMED as Modified; Opinion Filed June 16, 2014.
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-13-00834-CR
No. 05-13-00836-CR
GREGORY LEWIS MARTINEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 3
Dallas County, Texas
Trial Court Cause Nos. F12-60606-J, F12-60605-J
MEMORANDUM OPINION
Before Justices Fillmore, Evans, and Lewis
Opinion by Justice Evans
Gregory Lewis Martinez waived a jury and pleaded guilty to retaliation and evading
arrest or detention. See TEX. PENAL CODE ANN. §§ 36.06(a), 38.04(a) (West 2011 & Supp.
2013). On the retaliation conviction, the trial court assessed punishment, enhanced by one prior
felony conviction, at ten years’ imprisonment and a $1,500 fine. On the evading arrest
conviction, the trial court assessed punishment, enhanced by two prior felony convictions, at ten
years’ imprisonment and a $1,500 fine. On appeal, appellant’s attorney filed a brief in which she
concludes the appeals are wholly frivolous and without merit. The brief meets the requirements
of Anders v. California, 386 U.S. 738 (1967). The brief presents a professional evaluation of the
record showing why, in effect, there are no arguable grounds to advance. See High v. State, 573
S.W.2d 807, 811 (Tex. Crim. App. [Panel Op.] 1978). Counsel delivered a copy of the brief to
appellant.
Appellant filed a pro se response raising several issues After reviewing counsel’s brief,
appellant’s pro se response, and the record, we agree the appeals are frivolous and without merit.
See Bledsoe v. State, 178 S.W.3d 824, 827 (Tex. Crim. App. 2005) (explaining appellate court’s
duty in Anders cases). We find nothing in the record that might arguably support the appeals.
Although not an arguable issue, we note the trial court’s judgments contain several errors.
The record shows appellant entered open pleas of guilty to the charges in the indictments. The
trial court’s judgments, however, recite terms of plea bargain agreements. Moreover, the trial
court orally pronounced a $1,500 fine in each case. The judgment in cause no. 05-13-00836-CR
states the fine as “N/A.” When a conflict exists between the oral pronouncement and the
judgment, the oral pronouncement controls. See Coffey v. State, 979 S.W.2d 326, 328 (Tex.
Crim. App. 1998). Further, the judgment in cause no. 05-13-00836-CR erroneously states the
degree of the offense for which appellant was convicted is a third-degree felony. However,
appellant was indicted for a state-jail felony offense that was enhanced by two prior non-state-
jail-felony convictions. See TEX. PENAL CODE ANN. §§ 12.425(b), 38.04(b)(1)(A) (West Supp.
2013).
In cause no. 05-13-00834-CR, we modify the trial court’s judgment to show the terms of
plea bargain were “open.” See TEX. R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27–28
(Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529–30 (Tex. App.—Dallas 1991,
pet. ref’d). In cause no. 05-13-00836-CR, we modify the trial court’s judgment to show the
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degree of the offense is a state-jail felony, terms of plea bargain were “open,” and to include the
$1,500 fine that was orally pronounced.
As modified, we affirm the trial court’s judgments.
/ David Evans/
DAVID EVANS
JUSTICE
Do Not Publish
TEX. R. APP. P. 47
130834F.U05
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
GREGORY LEWIS MARTINEZ, Appeal from the Criminal District Court
Appellant No. 3 of Dallas County, Texas (Tr.Ct.No.
F12-60606-J).
No. 05-13-00834-CR V. Opinion delivered by Justice Evans,
Justices Fillmore and Lewis participating.
THE STATE OF TEXAS, Appellee
Based on the Court’s opinion of this date, the trial court’s judgment is MODIFIED as
follows:
The section entitled “Terms of Plea Bargain” is modified to show “Open.”
As modified, we AFFIRM the trial court’s judgment.
Judgment entered June 16, 2014.
/ David Evans/
DAVID EVANS
JUSTICE
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
GREGORY LEWIS MARTINEZ, Appeal from the Criminal District Court
Appellant No. 3 of Dallas County, Texas (Tr.Ct.No.
F12-60605-J).
No. 05-13-00836-CR V. Opinion delivered by Justice Evans,
Justices Fillmore and Lewis participating.
THE STATE OF TEXAS, Appellee
Based on the Court’s opinion of this date, the trial court’s judgment is MODIFIED as
follows:
The section entitled “Degree of Offense” is modified to show “State Jail Felony.”
The section entitled “Terms of Plea Bargain” is modified to show “Open.”
The section entitled “Fine” is modified to show “$1,500.”
As modified, we AFFIRM the trial court’s judgment.
Judgment entered June 16, 2014.
/ David Evans/
DAVID EVANS
JUSTICE
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