Adam Charles Romero v. State ( 2013 )

NUMBER 13-13-00270-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
ADAM CHARLES ROMERO, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 36th District Court
of San Patricio County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Benavides and Longoria
Memorandum Opinion by Justice Longoria
Appellant Adam Charles Romero was charged by indictment with assault on an
elderly individual, a third-degree felony. See TEX. PENAL CODE ANN. § 22.04 (West
2011). The trial court deferred adjudication, placed appellant on community supervision
for five years, and assessed a fine of $500. In January of 2012, the State filed its
second motion to revoke, 1 alleging seven violations of the terms of appellant’s
community supervision. At a revocation hearing in May of 2012, appellant pleaded
“true” to six of the seven allegations. The trial court found that appellant had violated
the terms of his supervision but continued appellant on community supervision and
extended the term for one year. The trial court also found that drug or alcohol abuse
“significantly contributed” to the violations and amended the terms of appellant’s
supervision to require him to spend at least ninety days in a “Special Needs” Substance
Abuse Felony Punishment Facility (SAFPF). 2 The State later filed a third motion to
revoke, alleging that appellant did not complete the required term in the SAFPF facility.
Appellant pleaded “true” to the State’s allegation. The trial court revoked appellant’s
community supervision, adjudicated appellant guilty of the original offense, and imposed
a sentence of three years in the Texas Department of Criminal Justice—Institutional
Division with “credit, no fine, costs of court.” This appeal followed. We affirm as
modified.
I. ANDERS BRIEF
Appellant’s court-appointed appellate counsel has filed a brief and motion to
withdraw with this Court pursuant to Anders v. California, 386 U.S. 738, 744 (1967),
stating that his review of the record yielded no grounds of error upon which to base an
appeal. Counsel’s brief meets the requirements of Anders as it presents a professional
evaluation demonstrating why there are no arguable grounds to advance on appeal.
1
The trial court dismissed the State’s first motion to revoke at the State’s request, apparently
without any action being taken on it.
2
Appellant stated at the revocation hearing that he has been diagnosed with bipolar disorder and
schizoaffective disorder and is taking medication prescribed to him by the MHMR program to treat those
conditions.
2
See In re Schulman, 252 S.W.3d 403, 406 n.9 (Tex. Crim. App. 2008) (“In Texas, an
Anders brief need not specifically advance ‘arguable’ points of error if counsel finds
none, but it must provide record references to the facts and procedural history and set
out pertinent legal authorities.”) (citing Hawkins v. State, 112 S.W.3d 340, 343–44 (Tex.
App.—Corpus Christi 2003, no pet.)); Stafford v. State, 813 S.W.2d 503, 510 n.3 (Tex.
Crim. App. 1991).
In compliance with High v. State, 507 S.W.2d 807, 813 (Tex. Crim. App. [Panel
Op.] 1978), appellant’s counsel carefully discussed why, under controlling authority,
there is no reversible error in the trial court’s judgment. Counsel has informed this
Court that he has: (1) examined the record and found no arguable grounds to advance
on appeal; (2) served a copy of the brief and counsel’s motion to withdraw on appellant;
and (3) informed appellant of his right to review the record and to file a pro se
response. 3 See Anders, 386 U.S. at 744; Stafford, 813 S.W.2d at 510 n.3; see also In
re Schulman, 252 S.W.3d at 409 n.23. More than a sufficient amount of time has
passed, and appellant has not responded by filing a pro se response.
II. INDEPENDENT REVIEW
Upon receiving an Anders brief, we must conduct a full examination of all the
proceedings to determine whether the case is wholly frivolous. Penson v. Ohio, 488
U.S. 75, 80 (1988). We have reviewed the entire record, including counsel’s appellate
brief, and we have found no reversible error. See Bledsoe v. State, 178 S.W.3d 824,
827–28 (Tex. Crim. App. 2005) (“Due to the nature of Anders briefs, by indicating in the
3
The Texas Court of Criminal Appeals has held that “the pro se response need not comply with
the rules of appellate procedure in order to be considered. Rather, the response should identify for the
court those issues which the indigent appellant believes the court should consider in deciding whether the
case presents any meritorious issues.” In re Schulman, 252 S.W.3d 403, 409 n.23 (Tex. Crim. App.
2008) (quoting Wilson v. State, 955 S.W.2d 693, 696–97 (Tex. App.—Waco 1997, no pet.)).
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opinion that it considered the issues raised in the briefs and reviewed the record for
reversible error but found none, the court of appeals met the requirement of Texas Rule
of Appellate Procedure 47.1.”). However, there is some error in the record because the
judgment assessed $1,090 in attorney’s fees even though the trial court earlier
determined appellant to be indigent, and assessed a $500 fine that was not orally
pronounced as part of the sentence.
Appellate courts may modify the trial court’s judgment to make the record speak
the truth when we have the necessary information to do so, even in cases where
appellant’s counsel files an Anders brief. See TEX. R. APP. P. 43.2(b); Pfeiffer v. State,
363 S.W.3d 594, 599 (Tex. Crim. App. 2012) (observing that “when a defendant
appeals his conviction, the courts of appeals have the jurisdiction to address any error
in that case”); see also Martinez v. State, No. 13-12-00161-CR, 2013 WL 1281983, at
*2 (Tex. App.—Corpus Christi Mar. 28, 2013, pet. ref’d) (mem. op., not designated for
publication) (collecting cases where appellate courts have sua sponte modified the
judgment without the need for additional briefing or abatement).
Regarding the $1,090 in attorney’s fees, our review of the record reflects that the
trial court determined that appellant was indigent. See TEX. CODE CRIM. PROC. art.
26.04 (West Supp. 2012). A defendant who the trial court determined to be indigent
cannot be required to repay the cost of the legal services provided to him. See Mayer v.
State, 309 S.W.3d 552, 556 (Tex. Crim. App. 2010) (observing that a “defendant’s
financial resources and ability to pay are explicit critical elements in the trial court’s
determination of the propriety of ordering reimbursement of costs and fees”); see also
TEX. CODE CRIM. PROC. ANN. art. 26.04(p) (“A defendant who is determined by the court
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to be indigent is presumed to remain indigent for the remainder of the proceedings in
the case unless a material change in the defendant’s financial circumstances occurs.”).
There is no evidence in the record that appellant’s indigent status changed prior to the
trial court’s decision to adjudicate guilt in this case. Therefore, the trial court erred in
requiring appellant to repay the cost of his counsel, and we modify the judgment to
delete the assessment of $1,090 in attorney’s fees. See Mayer, 309 S.W.3d at 556; see
also Martinez, 2013 WL 1281983, at *2 (deleting an assessment of attorney’s fees in an
Anders case); Nelson v. State, No. 03-11-00022-CR, 2011 WL 5504935, at *2 (Tex.
App.—Austin Nov. 9, 2011, no pet.) (mem. op., not designated for publication) (same).
Regarding the fine, the trial court did impose a $500 fine as a condition of
community supervision, but when pronouncing sentence at the revocation hearing, the
court specifically stated that it was imposing “no fine” as part of the sentence. “A trial
court’s pronouncement of sentence is oral, while the judgment, including the sentence
assessed, is merely the written declaration and embodiment of that oral
pronouncement.” Ex parte Madding, 70 S.W.3d 131, 135 (Tex. Crim. App. 2002).
“When the oral pronouncement of sentence and the written judgment vary, the oral
pronouncement controls.” Id. (citing Coffey v. State, 979 S.W.2d 326, 328 (Tex. Crim.
App. 1998)). Because it is apparent from the record that the trial court did not impose a
fine when pronouncing appellant’s sentence, we modify the judgment to delete the $500
fine. See Madding, 70 S.W.3d at 135; see also Jackson v. State, No. 13-12-00282-CR,
2013 WL 179402, at *1 (Tex. App.—Corpus Christi Jan. 17, 2013, no pet.) (mem. op.,
5
not designated for publication) (modifying the judgment in an Anders case to delete a
fine that was not orally pronounced at sentencing); Brasfield v. State, No. 13-08-00699-
CR, 2009 WL 2929275, at **1–2 (Tex. App.—Corpus Christi Aug. 25, 2009, no pet.)
(mem. op., not designated for publication) (same).
We modify the judgment to delete the assessment of $1,090 in attorney’s fees
and the $500 fine. We affirm as modified.
III. MOTION TO WITHDRAW
In accordance with Anders, appellant’s attorney requests this Court for
permission to withdraw as counsel for appellant. See Anders, 386 U.S. at 744; see also
In re Schulman, 252 S.W.3d at 408 n.17 (citing Jeffery v. State, 903 S.W.2d 776, 779–
80 (Tex. App.—Dallas 1995, no pet.) (“[I]f an attorney believes the appeal is frivolous,
he must withdraw from representing the appellant. To withdraw from representation,
the appointed attorney must file a motion to withdraw accompanied by a brief showing
the appellate court that the appeal is frivolous.” (citations omitted)). We grant counsel’s
motion to withdraw. Counsel is ordered to send a copy of this opinion and this Court’s
judgment to appellant within five days of the date of this Court’s opinion and to advise
appellant of his right to file a petition for discretionary review with the court of criminal
appeals. 4 See TEX. R. APP. P. 48.4; see also In re Schulman, 252 S.W.3d at 412 n.35;
4
No substitute counsel will be appointed. Should appellant 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 date of either this opinion or the last timely motion for rehearing or
timely motion for en banc reconsideration that was 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 Appeals. See id.
R. 68.3. Any petition for discretion review should comply with the requirements of Texas Rule of
Appellate Procedure 68.4. Id. R. 68.4.
6
Ex parte Owens, 206 S.W.3d 670, 673 (Tex. Crim. App. 2006).
___________________
NORA L. LONGORIA
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
19th day of December, 2013.
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