Manuel Medina Torres v. State

Opinion issued March 26, 2013
In The
Court of Appeals
For The
First District of Texas
NO. 01-11-00907-CR
____________
MANUEL MEDINA TORRES, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 178th District Court
Harris County, Texas
Trial Court Cause No. 1302035
MEMORANDUM OPINION
Appellant, Manuel Medina Torres, pleaded guilty, without an agreed
recommendation as to punishment, to the offense of possession with intent to
deliver cocaine weighing at least 400 grams. See TEX. HEALTH & SAFETY CODE
ANN. § 481.112(a), (f) (West 2010). The trial court sentenced appellant to 15 years
in prison and imposed a $5,000 fine. The trial court certified 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 appeal is without merit and is 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, 812–13 (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, 155 (Tex. App.—Houston [1st Dist.] 2006, no pet.).
Counsel has informed us that he has delivered a copy of the brief to appellant
and informed him of his right to examine the appellate record and to file a response.
See In re Schulman, 252 S.W.3d 403, 408 (Tex. Crim. App. 2008). Appellant has
not filed a pro se response.
We have independently reviewed the entire record in this appeal, and we
conclude that no reversible error exists in the record, that there are no arguable
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grounds for review, and that therefore 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). 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.
The trial judge orally sentenced appellant to 15 years in prison and imposed a
$5,000 fine. The written judgment reflects the 15 year sentence, but does not reflect
the $5,000 fine. When the oral pronouncement of the sentence in open court
conflicts with the written judgment, the oral pronouncement controls. Thompson v.
State, 108 S.W.3d 287, 290 (Tex. Crim. App. 2003). The solution in such a case is
to modify the written judgment to conform to the sentence that was orally
pronounced in open court. Id. An appellate court has the power to correct a trial
court’s written judgment if the appellate court has the information necessary to do
so. Cobb v. State, 95 S.W.3d 664, 668 (Tex. App.—Houston [1st Dist.] 2002, no
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pet.). This power does not depend upon a party’s calling an error to the court's
attention or raising the issue on appeal. See French v. State, 830 S.W.2d 607, 609
(Tex. Crim. App. 1992). An appellate court may modify the judgment in an Anders
case to reflect the judgment orally pronounced, affirm the judgment, and grant
counsel’s motion to withdraw. See Alexander v. State, 301 S.W.3d 361, 364 (Tex.
App.—Fort Worth 2009, no pet.) (granting counsel’s motion to withdraw and
affirming judgment as modified where judgment included fine that was not orally
pronounced).
Therefore, the trial court’s judgment is modified to include the $5,000 fine.
We affirm the judgment of the trial court as modified and grant counsel’s motion to
withdraw. 1 Attorney Don Cantrell 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 Jennings, Bland, and Massengale.
Do not publish. TEX. R. APP. P. 47.2(b).
1
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).
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