William Michael Urnick v. State

Affirmed and Memorandum Opinion filed August 5, 2010.

In The

Fourteenth Court of Appeals

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NO. 14-09-01047-CR

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WILLIAM MICHAEL URNICK, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 176th District Court

Harris County, Texas

Trial Court Cause No. 0976476

MEMORANDUM OPINION

Appellant entered a plea of guilty to possession of child pornography.  In accordance with a plea bargain, the trial court deferred adjudication of guilt and placed appellant under community supervision for a period of ten years.  Subsequently, the State moved to adjudicate guilt.  The trial court found appellant had violated the terms of his community supervision and proceeded to adjudicate guilt.  The trial court sentenced appellant to confinement for ten years in the Institutional Division of the Texas Department of Criminal Justice. Appellant filed a timely notice of appeal.

Appellant=s appointed counsel filed a brief in which he concludes the appeal is wholly frivolous and without merit. The brief meets the requirement of Anders v. California, 386 U.S. 738, 87 S. Ct. 1396 (1967), by presenting a professional evaluation of the record and demonstrating why there are no arguable grounds to be advanced. See High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978).

A copy of counsel’s brief was delivered to appellant.  Appellant was advised of the right to examine the appellate record and file a pro se response. See Stafford v. State, 813 S.W.2d 503, 510 (Tex. (Tex. Crim. App.1991). As of this date, no pro se response has been filed.

We have carefully reviewed the record and counsel=s brief and agree the appeal is wholly frivolous and without merit. Further, we find no reversible error in the record. We are not to address the merits of each claim raised in an Anders brief or a pro se response when we have determined there are no arguable grounds for review. See Bledsoe v. State, 178 S.W.3d 824, 827–28 (Tex. Crim. App. 2005).

However, there are errors in the judgment, as pointed out by appellate counsel: (1) that appellant pled true; (2) that the trial court assessed a $500 fine; and (3) that the offense is a second degree felony.  The record shows (1) appellant pled “not true;” (2) no fine was assessed; and (3) the offense was a third degree felony.  An appellate court has the power to correct and reform a trial court judgment to make the record speak the truth when it has the necessary data and information to do so. Nolan v. State, 39 S.W.3d 697, 698 (Tex. App. -- Houston [1st Dist.] 2001, no pet.) (citing Asberry v. State, 813 S.W.2d 526, 529 (Tex. App. -- Dallas 1991, pet. ref'd)); see also Tex. R. App. P. 43.2(b).  Similar errors have been corrected in other Anders cases.  See Siverand v. State, No. 14-08-01083-CR, 2009 WL 2579834, at *1 (Tex. App. -- Houston [14th Dist] 2009, no pet.) (mem.. op., not designated for publication); Webb v. State, No. 05-96-01382-CR, 1997 WL 412093, at *1 (Tex. App. – Dallas 1997, no pet.) (not designated for publication); and Houston v. State, No. 01-98-01311-CR, 2000 WL 964646, 1 (Tex. App. -- Houston [1st Dist.] 2000, no pet.) (not designated for publication).

Accordingly, we reform the judgment of conviction (1) to reflect appellant did not enter a plea of true to the motion to adjudicate; (2) to delete the $500 fine; and (3) to state appellant was convicted of a third degree felony.  See Blanco v. State, 761 S.W.2d 38, 42 (Tex. App. -- Houston [14th Dist.] 1988, no pet.); and Norman v. State, 642 S.W.2d 251, 253 (Tex. App. -- Houston [14th Dist.] 1982, no pet.).  As reformed the judgment of the trial court is affirmed.

PER CURIAM

Panel consists of Justices Brown, Sullivan, and Christopher. 

Do Not Publish — Tex. R. App. P. 47.2(b).