Charles Michael Thomas v. State ( 2012 )

NUMBER 13-12-00283-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
CHARLES MICHAEL THOMAS, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 252nd District Court
of Jefferson County, Texas.
MEMORANDUM OPINION1
Before Chief Justice Valdez and Justices Rodriguez and Vela
Memorandum Opinion by Justice Rodriguez
Appellant Charles Michael Thomas pleaded guilty to assault/family violence by
choking pursuant to a plea bargain agreement. See TEX. PENAL CODE ANN. §
1
This case is before this Court on transfer from the Ninth Court of Appeals in Beaumont pursuant
to an order issued by the Supreme Court of Texas. See TEX. GOV'T CODE ANN. § 73.001 (West 2005).
22.01(b)(2)(B) (West 2011). The trial court deferred adjudication and placed appellant
on community supervision for three years. With retained counsel present, appellant
subsequently pleaded true to three allegations in the State's motion to revoke. 2 After
hearing testimony, the trial court found the allegations to be true, revoked appellant’s
community supervision, adjudicated him guilty, and assessed punishment in the
Institutional Division of the Texas Department of Criminal Justice for nine years.
Concluding there are no arguable grounds, fundamental or otherwise, upon which
appellant could obtain relief from the judgment and sentence in the trial court, appellant's
counsel filed an Anders brief. We affirm as modified.
I. Compliance with Anders
Pursuant to Anders v. California, appellant's counsel filed a brief and a motion to
withdraw with this Court stating that he has diligently reviewed the record in this case and
has researched the law. In his opinion, counsel has found no reversible error committed
by the trial court and no arguable grounds for review. See 386 U.S. 738, 744-45 (1967).
Counsel's brief meets the requirements of Anders as it presents a professional evaluation
showing why there are no non-frivolous grounds for advancing an appeal. See In re
Schulman, 252 S.W.3d 403, 407 n.9 (Tex. Crim. App. 2008) (orig. proceeding) (“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.
2
The trial court withdrew and vacated its findings and a resultant order from a first revocation
proceeding where the court had appointed counsel when appellant’s retained counsel did not appear.
2
Crim. App. 1991) (en banc).
In compliance with High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel
Op.] 1978), appellant's counsel has carefully discussed why, under controlling authority,
an appeal from the judgment and sentence is without merit and frivolous because the
record reflects no reversible error and, in his opinion, there are no grounds upon which an
appeal can be predicated. Counsel specifically noted, from his review of the following,
that he found no issues presented for review: (1) the plea and sentencing proceedings;
and (2) the revocation proceedings. Counsel has demonstrated that he has complied
with the requirements of Anders by (1) examining the record and finding no arguable
grounds to advance on appeal, (2) serving a copy of the brief on appellant, (3) providing
appellant with a copy of the reporter's record and a copy of the clerk's record, (4)
informing appellant of his right to review the record and to file a pro se response raising
any ground of error or complaint which he may desire, and (5) informing appellant that he
had filed a motion to withdraw as counsel and a motion to extend appellant’s time to file
his pro se response. 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. This Court granted appellant’s motion to
extend the time for filing his pro se response. That time has passed, and appellant has
not filed a pro se response. See In re Schulman, 252 S.W.3d at 409.
II. INDEPENDENT REVIEW
Upon receiving an Anders brief, this Court must conduct a full examination of all
proceedings to determine whether the case is wholly frivolous. Penson v. Ohio, 488 U.S.
75, 80 (1988). We have reviewed the appellate record, counsel's Anders brief, and the
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State’s brief. The State points out that the administrative fee calculation contained in the
judgment includes a $500.00 fine that was not orally pronounced at sentencing. See
State v. Davis, 349 S.W.3d 535, 538 (Tex. Crim. App. 2011) (“‘When the oral
pronouncement of the sentence and the written judgment vary, the oral pronouncement
controls’ because ‘the written sentence or order simply memorializes’ the oral
pronouncement.”) (quoting Ex Parte Madding, 70 S.W.3d 131, 135 (Tex. Crim. App.
2002)). An intermediate appellate court may reform a trial court's judgment to make the
record speak the truth when it has the necessary data and information to do so. TEX. R.
APP. P. 43.2(b); see e.g., Tamez v. State, 620 S.W.2d 586, 590 (Tex. Crim. App. [Panel
Op.] 1981) (reforming the judgment to show a fine imposed but not stated in the
judgment); Nolan v. State, 39 S.W.3d 697, 698 (Tex. App.—Houston [1st Dist.] 2001, no
pet.) (reforming the judgment to reflect a longer sentence). Accordingly, we modify the
trial court's judgment to delete the $500.00 fine from appellant’s administrative fees and
from the trial court’s findings. We need not order appointment of new counsel to re-brief
the appeal. Compare Stafford, 813 S.W.2d at 511.
Having found nothing that would arguably support an appeal, we agree with
counsel that the appeal is wholly frivolous and without merit. See Bledsoe v. State, 178
S.W.3d 824, 826-28 (Tex. Crim. App. 2005) (“Due to the nature of Anders briefs, by
indicating in the 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.”); Stafford, 813 S.W.2d at 509. We affirm the
judgment as modified.
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III. MOTION TO WITHDRAW
In accordance with Anders, counsel has filed a motion to withdraw. 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.) (“If 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 that was carried with the case on July 24, 2012.
Within five days of the date of this Court’s opinion, counsel is ordered to send a copy of
the opinion and judgment to appellant and to advise appellant of his right to pursue a
petition for review.3 See Tex. R. App. P. 48.4; see also In re Schulman, 252 S.W.3d at
412 n.35; Ex parte Owens, 206 S.W.3d 670, 673 (Tex. Crim. App. 2006).
NELDA V. RODRIGUEZ
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the 20th
day of December, 2012.
3
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 that
was overruled by this Court. See TEX. R. APP. P. 68.2. Effective September 1, 2011, any petition for
discretionary review must be filed with the clerk of the Court of Criminal Appeals. See TEX. R. APP. P. 68.3.
Any petition for discretionary review should comply with the requirements of Rule 68.4 of the Texas Rules of
Appellate Procedure. See TEX. R. APP. P. 68.4.
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