Brett Orth A/K/A Brett Ronald Orth v. the State of Texas ( 2023 )

NUMBER 13-22-00611-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
BRETT ORTH A/K/A
BRETT RONALD ORTH, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 82nd District Court
of Falls County, Texas.
MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Benavides and Longoria
Memorandum Opinion by Justice Longoria
On November 14, 2019, appellant Brett Orth a/k/a Brett Ronald Orth pleaded guilty
to the offense of evading arrest in a motor vehicle, a third-degree felony. See TEX. PENAL
CODE ANN. § 38.04(a), (b)(2)(A). The trial court deferred a finding of guilt and placed
appellant on deferred adjudication community supervision for a term of three years. On
June 9, 2022, appellee the State of Texas filed a motion to proceed with adjudication,
alleging that Orth had violated numerous terms of his deferred adjudication community
supervision. After a hearing on July 28, 2022, the trial court found that appellant violated
a term of his deferred adjudication community supervision, adjudicated appellant guilty of
evading arrest in a motor vehicle, and sentenced appellant to eight years’ confinement in
the Correctional Institutions Division of the Texas Department of Criminal Justice.
Appellant’s court-appointed counsel has filed an Anders brief stating that there are no
arguable grounds for appeal. See Anders v. California, 386 U.S. 738, 744 (1967). We
affirm the trial court’s judgment as modified. 1
I. ANDERS BRIEF
Pursuant to Anders v. California, appellant’s court-appointed appellate counsel
filed a brief and an amended motion to withdraw with this Court, stating that his review of
the record yielded no grounds of reversible error upon which an appeal could be
predicated. See id. 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. See In re Schulman, 252 S.W.3d 403, 406 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–Edinburg 2003, no pet.))); Stafford v.
State, 813 S.W.2d 503, 510 n.3 (Tex. Crim. App. 1991).
1This case is before this Court on transfer from the Tenth Court of Appeals in Waco pursuant to a
docket-equalization order issued by the Supreme Court of Texas. See TEX. GOV’T CODE Ann. §73.001.
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In compliance with High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel
Op.] 1978) and Kelly v. State, 436 S.W.3d 313, 319–22 (Tex. Crim. App. 2014),
appellant’s counsel carefully discussed why, under controlling authority, there is no
reversible error in the trial court’s judgment. Appellant’s counsel also informed this Court
in writing that he: (1) notified appellant that counsel has filed an Anders brief and a motion
to withdraw; (2) provided appellant with copies of both pleadings; (3) informed appellant
of his right to file a pro se response, to review the record prior to filing those responses,
and to seek discretionary review if we conclude that the appeal is frivolous; and
(4) provided appellant with the appellate record. See Anders, 386 U.S. at 744; Kelly, 436
S.W.3d at 319–20, 320 n.22; see also In re Schulman, 252 S.W.3d at 408–09. Appellant
did not file 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 record and counsel’s brief, and we have found
nothing that would arguably support an appeal. See Bledsoe, 178 S.W.3d at 827–28
(“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 requirements of Texas Rule of Appellate Procedure 47.1.”);
Stafford, 813 S.W.2d at 511.
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III. MODIFICATION OF TRIAL COURT’S JUDGMENT
“[A]ppellate courts are authorized to reform judgments and affirm as modified in
Anders cases involving non-reversible error.” Mitchell v. State, 653 S.W.3d 295, 297 (Tex.
App.—Texarkana 2022, no pet.) (collecting cases that have modified judgments in Anders
cases). At the hearing on the State’s motion to proceed with an adjudication of guilt,
appellant pleaded not true to the State’s six alleged violations of the community
supervision order, and the trial court found that one of the allegations was true.
Nevertheless, although the trial court’s written judgment adjudicating guilt correctly recites
which of the State’s allegations the trial court found to be true, it incorrectly recites that
appellant pleaded true to the State’s allegations. The judgment adjudicating guilt has an
entry under “Plea to Motion to Adjudicate” that recites “True”. We modify the judgment
adjudicating guilt by changing the recited entry under “Plea to Motion to Adjudicate” to
“Not True.”
The judgment adjudicating guilt also has an entry under “Statute for Offense” that
recites “38.04 Penal Code.” The offense as charged in the indictment, and for which
appellant was found guilty, requires elements in addition to that required under § 38.04
of the Texas Penal Code. The correct statute is § 38.04(a), (b)(2)(A). See Adetomiwa v.
State, 421 S.W.3d 922, 927 (Tex. App.—Fort Worth, 2014 no pet.) (holding that legislative
amendments creating § 38.04(b)(2)(A) in 2011 provided that the offense of evading arrest
or detention, where the accused uses a motor vehicle in his or her flight, is a third-degree
felony); see also Scott v. State, No. 10-13-00159-CR, 2014 WL 1271756, *2 (Tex. App.—
Waco March 27, 2014, no pet.) (mem. op., not designated for publication) (agreeing and
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following Adetomiwa’s reasoning). Consequently, we modify the judgment adjudicating
guilt by changing the recited entry under “Statute for Offense” to “38.04(a), (b)(2)(A).”
IV. MOTION TO WITHDRAW
In accordance with Anders, appellant’s counsel has asked this Court for
permission to withdraw as counsel. See Anders, 386 U.S. at 744; see also In re
Schulman, 252 S.W.3d at 408 n.17. We grant counsel’s amended motion to withdraw.
Within five days from the date of this Court’s opinion, counsel is ordered to send a copy
of this opinion and this Court’s judgment to appellant and to advise him of his right to file
a petition for discretionary review. 2 See TEX. R. APP. P. 48.4; see also In re Schulman,
252 S.W.3d at 411 n.35; Ex parte Owens, 206 S.W.3d 670, 673 (Tex. Crim. App. 2006).
V. CONCLUSION
We affirm the trial court’s judgment as modified.
NORA L. LONGORIA
Justice
Do not publish.
TEX. R. APP. P. 47.2 (b).
Delivered and filed on the
20th day of July, 2023.
2 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 Texas Court of Criminal Appeals. See id. R. 68.3.
Any petition for discretionary review should comply with the requirements of Texas Rule of Appellate
Procedure 68.4. See id. R. 68.4.
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