Flavio Charles Patino v. State

NO. 07-11-00130-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
SEPTEMBER 9, 2011
FLAVIO CHARLES PATINO, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
FROM THE 110TH DISTRICT COURT OF BRISCOE COUNTY;
NO. 1135; HONORABLE WILLIAM P. SMITH, JUDGE
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
Appellant, Flavio Charles Patino, was convicted of unlawful possession of a
firearm1 and sentenced to confinement in the Institutional Division of the Texas
Department of Criminal Justice for 10 years. Appellant gave notice of appeal. We will
modify and affirm the judgment of the trial court.
Appellant=s attorney has filed an Anders brief and a motion to withdraw. Anders
v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 498 (1967). In support of his
motion to withdraw, counsel certifies that he has diligently reviewed the record, and in
1
See TEX. PENAL CODE ANN. § 46.04(a)(2) (West 2011).
his opinion, the record reflects no reversible error upon which an appeal can be
predicated. Id. at 744-45. In compliance with High v. State, 573 S.W.2d 807, 813
(Tex.Crim.App. 1978), counsel has candidly discussed why, under the controlling
authorities, there is no error in the trial court=s judgment. Additionally, counsel has
certified that he has provided appellant a copy of the Anders brief and motion to
withdraw and appropriately advised appellant of his right to file a pro se response in this
matter. Stafford v. State, 813 S.W.2d 503, 510 (Tex.Crim.App. 1991). The Court has
also advised appellant of his right to file a pro se response. Appellant filed a response.
By his Anders brief, counsel reviewed all grounds that could possibly support an appeal,
but concludes the appeal is frivolous. We have reviewed these grounds and made an
independent review of the entire record to determine whether there are any arguable
grounds which might support an appeal. See Penson v. Ohio, 488 U.S. 75, 109 S. Ct.
346, 102 L. Ed. 2d 300 (1988); Bledsoe v. State, 178 S.W.3d 824 (Tex.Crim.App. 2005).
Additionally, we have reviewed the grounds set forth in appellant’s response. Id. We
have found no such arguable grounds and agree with counsel that the appeal is
frivolous.
We note the trial court’s judgment contains a special order that appellant repay
attorney’s fees in the amount of $1,120.00 to Briscoe County. The record contains no
determination by the court of appellant’s ability to pay such fees. TEX. CODE CRIM.
PROC. ANN. art. 26.05(g) (West Supp. 2010). Accordingly, we modify the trial court’s
judgment by deleting the language ordering appellant to repay attorney’s fees in the
amount of $1,120.00. See Mayer v. State, 274 S.W.3d 898, 902 (Tex.App.–Amarillo
2
2008), aff’d, 309 S.W.3d 552 (Tex.Crim.App. 2010) (modified judgment to delete like
order).
Accordingly, the motion to withdraw is granted, and the judgment is affirmed as
modified. 2 TEX. R. APP. P. 43.2(b).
Mackey K. Hancock
Justice
Do not publish.
2
Counsel shall, within five days after this opinion is handed down, send his client
a copy of the opinion and judgment, along with notification of appellant=s right to file a
pro se petition for discretionary review. See TEX. R. APP. P. 48.4.
3