Jay Scott Garrison, Jr. v. State ( 2014 )

Opinion issued June 26, 2014
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-12-01144-CR
NO. 01-12-01145-CR
NO. 01-12-01146-CR
———————————
JAY SCOTT GARRISON, JR., Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 178th District Court
Harris County, Texas
Trial Court Case Nos. 1278458, 1278460, 1302172
MEMORANDUM OPINION
Appellant, Jay Scott Garrison, Jr., pleaded guilty to the offense of
aggravated assault against a public servant in trial court cause number 1278458
and to the offense of aggravated robbery in both trial court cause number 1278460
and trial court cause number 1302172, without an agreed recommendation from
the State regarding punishment. See TEX. PENAL CODE ANN. §§ 22.02(a)(2),
(b)(2)(B), 29.03(a)(2) (West 2011). The trial court found appellant guilty and
assessed punishment at 30 years’ confinement in each case. The trial court
certified that these are not plea bargain cases and that appellant has the right to
appeal. Appellant timely filed a notice of appeal.
Appellant’s appointed counsel on appeal has filed a motion to withdraw,
along with an Anders brief stating that the record presents no reversible error and
therefore the appeals are without merit and are frivolous. See Anders v. California,
386 U.S. 738, 87 S. Ct. 1396 (1967).
Counsel’s brief meets the Anders requirements by presenting a professional
evaluation of the record and supplying us with references to the record and legal
authority. See Anders, 386 U.S. at 744, 87 S. Ct. at 1400; see also High v. State,
573 S.W.2d 807, 812 (Tex. Crim. App. 1978). Counsel indicates that he has
thoroughly reviewed the record and that he is unable to advance any grounds of
error that warrant reversal. See Anders, 386 U.S. at 744, 87 S. Ct. at 1400;
Mitchell v. State, 193 S.W.3d 153, 154 (Tex. App.—Houston [1st Dist.] 2006, no
pet.).
In his pro se response, appellant argues that he was denied effective
assistance of counsel on appeal and at trial. He further argues that the trial court
2
has refused to file an application for writ of habeas corpus he sent to the court or to
inform him of the procedure for filing such an application. Finally, he argues that
the evidence was insufficient to prove beyond a reasonable doubt that he
committed the offenses for which he was indicted.
We have independently reviewed the entire record in this appeal, and we
conclude that no reversible error exists in the record, there are no arguable grounds
for review, and the appeal is frivolous. See Anders, 386 U.S. at 744, 87 S. Ct. at
1400 (emphasizing that reviewing court—and not counsel—determines, after full
examination of proceedings, whether appeal is wholly frivolous); Garner v. State,
300 S.W.3d 763, 767 (Tex. Crim. App. 2009) (reviewing court must determine
whether arguable grounds for review exist); Bledsoe v. State, 178 S.W.3d 824,
826–27 (Tex. Crim. App. 2005) (same); Mitchell, 193 S.W.3d at 155 (reviewing
court determines whether arguable grounds exist by reviewing entire record). We
note that an appellant may challenge a holding that there are no arguable grounds
for appeal by filing a petition for discretionary review in the Court of Criminal
Appeals. See Bledsoe, 178 S.W.3d at 827 & n.6.
Although not an arguable issue, we note the trial court’s judgment in trial
court cause number 1302172 does not accurately reflect the proceedings. The trial
court pronounced sentence in all three trial court causes on December 10, 2012, at
which time the trial court made an affirmative finding regarding the use or
3
exhibition of a deadly weapon by appellant and stated the “sentence will begin
today.” The trial court’s December 10, 2012 written judgment accurately reflects
that appellant’s sentence was imposed and commenced on December 10, 2012 and
that the trial court made an affirmative finding regarding a firearm. On February 4,
2013, however, the trial court ordered entry of a judgment nunc pro tunc, solely to
correct the “cost bill to reflect the amount of $349.00,” and the trial court’s
subsequent judgment erroneously states “2/2/2013” as the date the sentence was
imposed and was to commence and “N/A” for the “Findings on Deadly Weapon.”1
We have the authority to reform a judgment to make the record speak the
truth when we have the necessary information before us to do so. See TEX. R. APP.
P. 42.3(b); French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992);
Ferguson v. State, No. 10-13-00173-CR, 2014 WL 895196, at *3 (Tex. App.—
Waco Mar. 6, 2014, no pet. h.); Romero v. State, No. 13-13-00270-CR, 2013 WL
6729959, at *3 (Tex. App.—Corpus Christi Dec. 19, 2013, no pet.) (mem. op., not
designated for publication); McBreen v. State, Nos. 05-03-01424-CR, 05-03-
01425-CR, 2005 WL 3032496, at *4 (Tex. App.—Dallas Nov. 14, 2005, no pet.)
(mem. op., not designated for publication). Accordingly, we modify the trial
1
Contrary to the statement on the first page of the judgment that findings on a
deadly weapon are not applicable, the second page of the judgment states: “The
Court FINDS Defendant used or exhibited a deadly weapon, namely, FIREARM,
during the commission of a felony offense or during immediate flight therefrom or
was a party to the offense and knew that a deadly weapon would be used or
exhibited. TEX. CODE CRIM. PROC. art. 42.12 §3g.”
4
court’s judgment in cause number 1302172 to reflect that the sentence was
imposed and commenced on December 10, 2012 and to reflect “Yes, A Firearm”
under “Findings on Deadly Weapon”.
We affirm the judgment of the trial court in cause numbers 1278458 and
1278460, affirm the judgment as modified in cause number 1302172, and grant
counsel’s motion to withdraw.2 Attorney Terrence Gaiser must immediately send
the notice required by Texas Rule of Appellate Procedure 6.5(c) and file a copy of
that notice with the Clerk of this Court. See TEX. R. APP. P. 6.5(c).
PER CURIAM
Panel consists of Justices Keyes, Sharp, and Huddle.
Do not publish. TEX. R. APP. P. 47.2(b).
2
Appointed counsel still has a duty to inform appellant of the result of this appeal
and that he may, on his own, pursue discretionary review in the Texas Court of
Criminal Appeals. See Ex Parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App.
1997).
5