Cyd Lavan Alexander v. State

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-16-00074-CR
NO. 03-16-00075-CR
Cyd Lavan Alexander, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 427TH JUDICIAL DISTRICT
NOS. D-1-DC-14-204544 & D-1-DC-14-204545
HONORABLE JIM CORONADO, JUDGE PRESIDING
MEMORANDUM OPINION
Appellant Cyd Lavan Alexander was charged with delivery of a controlled substance,
methamphetamine, in an amount less than one gram, see Tex. Health & Safety Code § 481.115(b),
and with possession with intent to deliver a controlled substance, methamphetamine, in an amount
of one gram or more but less than four grams, see id. § 481.115(c). For the first offense, a jury found
appellant guilty and found two enhancement paragraphs “true,” making the offense punishable as
a second-degree felony. See Tex. Penal Code § 12.425(b). For the second offense, the jury found
appellant guilty and found an enhancement paragraph “true,” making the offense punishable as a
first-degree felony. See id. § 12.42(b). The jury assessed appellant’s punishment at three years’
imprisonment and a $2,500 fine for the first offense and eight years’ imprisonment and a $2,500
fine for the second offense. When sentencing appellant, the trial court orally pronounced that the
sentences would run concurrently.
Appellant’s court-appointed attorney has filed a motion to withdraw supported by a
brief concluding that the appeal is frivolous and without merit. The brief meets the requirements of
Anders v. California by presenting a professional evaluation of the record demonstrating why there
are no arguable grounds to be advanced. See Anders v. California, 386 U.S. 738, 744 (1967);
Garner v. State, 300 S.W.3d 763, 766 (Tex. Crim. App. 2009); see also Penson v. Ohio, 488 U.S. 75,
86–87 (1988).
Appellant’s counsel has represented to the Court that he has provided copies of the
motion and the brief to appellant; advised appellant of his right to examine the appellate record and
file a pro se brief; and provided appellant with a form motion for pro se access to the appellate record
along with the mailing address of this Court. See Kelly v. State, 436 S.W.3d 313, 319–21 (Tex.
Crim. App. 2014); see also Anders, 386 U.S. at 744; Garner, 300 S.W.3d at 766. We have not
received a pro se brief from appellant.
We have conducted an independent review of the record, including appellate
counsel’s brief, and find no reversible error. See Anders, 386 U.S. at 744; Garner, 300 S.W.3d
at 766; Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim. App. 2005). We agree with counsel
that the record presents no arguably meritorious grounds for review and the appeal is frivolous.
However, appellate counsel notes that each judgment assesses a $2,500 fine against
appellant, and each judgment is accompanied by an order to withdraw funds from appellant’s inmate
account. A fine is part of appellant’s sentence, see State v. Crook, 248 S.W.3d 172, 174 (Tex. Crim.
App. 2008) (plurality op.) (citing State v. Ross, 953 S.W.2d 748, 750 (Tex. Crim. App. 1997)), and
the trial court’s oral pronouncement that appellant’s sentences would run concurrently controls
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over an inconsistent written judgment, see Ex parte Madding, 70 S.W.3d 131, 135 (Tex. Crim. App.
2002). Indeed, the trial court would have had no discretion to order that appellant’s sentences
run consecutively in this case. See Tex. Health & Safety Code § 481.132 (d); see also Tex. Penal
Code § 3.03(a). Because each judgment lists the $2,500 fine and is accompanied by a withdrawal
order, it is unclear whether appellant will actually be assessed a total fine of $5,000. To ensure that
appellant’s sentences run concurrently and that the total fine assessed against him is $2,500,
we modify the judgment in cause number D-1-DC-14-204544 so that the “Fine” sections reads,
“$2500.00, to run concurrently with the fine in cause number D-1-DC-14-204545.” Similarly, we
modify the judgment in cause number D-1-DC-14-204545 so that the “Fine” section reads,
“$2500.00, to run concurrently with the fine in cause number D-1-DC-14-204544.” See Tex. R. App.
P. 43.2(b); Aldana v. State, No. 08-13-00243-CR, 2015 WL 2344023, at *2 (Tex. App.—El Paso
May 14, 2015, pet. ref’d) (not designated for publication) (modifying judgments when fines should
have run concurrently); Wiedenfeld v. State, 450 S.W.3d 905, 907 (Tex. App.—San Antonio 2014,
no pet.) (modifying judgment “to comport with the trial court’s oral pronouncement that the fines
imposed run concurrently”).1
In addition, our own review of the record has revealed non-reversible error in the
judgment for the second offense. The record shows that appellant was charged with and found guilty
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The State concedes that the fines should run concurrently, for a total fine of $2,500.
Nevertheless, the State urges that this Court “may lack jurisdiction” to modify the withdrawal orders,
which “are construed as a civil matter.” However, we are modifying the judgment of conviction, not
the withdrawal order. See Aldana v. State, No. 08-13-00243-CR, 2015 WL 2344023, at *2 (Tex.
App.—El Paso May 14, 2015, pet. ref’d) (not designated for publication) (“The order to withdraw
funds in Counts Four and Five, however, are expressly incorporated into the judgments of conviction
and became part of it. Having reformed the judgments of convictions in Four and Five to delete the
$3,000 fine, the orders to withdraw funds are necessarily mooted.”).
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of possession with intent to deliver a controlled substance, methamphetamine, in an amount of one
gram or more but less than four grams. The judgment of conviction refers to Texas Health and Safety
Code section 481.112(b), but the proper reference for this offense is Texas Health and Safety Code
section 481.112(c). We therefore modify the judgment in cause number D-1-DC-14-204545 to
reflect the correct statutory reference. See Tex. R. App. P. 43.2(b).
Counsel’s motion to withdraw is granted. The judgments of conviction are affirmed
as modified.
__________________________________________
Scott K. Field, Justice
Before Justices Puryear, Pemberton, and Field
Modified, and as Modified, Affirmed
Filed: September 22, 2016
Do Not Publish
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