Alyssa Hudson v. State

• Court: Court of Appeals of Texas
• Decided: November 27, 2018
• Docket: 01-17-00759-CR
• Status: Published

Opinion

Opinion issued November 27, 2018

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-17-00759-CR ——————————— ALYSSA HUDSON, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 331st District Court Travis County, Texas1 Trial Court Case No. D-1-DC-11-301792

MEMORANDUM OPINION

1 Pursuant to its docket equalization authority, the Supreme Court of Texas transferred the appeal to this Court. See Misc. Docket No. 17-9128 (Tex. Sept. 28, 2017); see also TEX. GOV’T CODE ANN. § 73.001 (Vernon 2015) (authorizing transfer of cases). Appellant, Alyssa Hudson, without an agreed punishment recommendation

from the State, pleaded guilty to the felony offense of aggravated robbery.2 The trial

deferred adjudication of her guilt and placed her on community supervision for eight

years. The State, alleging numerous violations of her community supervision,

subsequently moved to adjudicate appellant’s guilt. After a hearing, the trial court

found several allegations true, found appellant guilty, assessed her punishment at

confinement for five years, and certified that she had 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 a brief stating that the record presents no reversible error and 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. 386 U.S. at 744, 87 S. Ct. at 1400; see also High v. State, 573 S.W.2d

807, 812 (Tex. Crim. App. 1978). Counsel indicates that he has thoroughly reviewed

the record and 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.).

2 See TEX. PENAL CODE ANN. § 29.03 (Vernon 2015); see id. § 29.03 (Vernon 2011).

2 Counsel has informed the Court that he delivered a copy of the brief and

motion to withdraw to appellant, informed her of her right to review the appellate

record and file a response to counsel’s Anders brief, and provided her a form motion

for pro se access to the record. See Kelly v. State, 436 S.W.3d 313, 319 (Tex. Crim.

App. 2014) In re Schulman, 252 S.W.3d 403, 408 (Tex. Crim. App. 2008).

Appellant has not filed a response to her counsel’s Anders brief.

We have independently reviewed the entire record in this appeal, and we

conclude that no reversible error exists in the record, there are no arguable grounds

for review, and the appeal is frivolous. See Anders, 386 U.S. at 744, 87 S. Ct. at

1400 (emphasizing 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). We note

that an appellant may challenge a holding that there are no arguable grounds for

appeal by filing a petition for discretionary review in the Texas Court of Criminal

Appeals. See Bledsoe, 178 S.W.3d at 827 & n.6.

Although not an arguable issue, counsel’s brief notes that the trial court’s

written judgment does not accurately comport with the record in this case. The

3 hearing record on the State’s motion to adjudicate reflects that the trial court found

true the allegations that appellant failed to report to her probation officer on July 27,

2016, September 6, 2016, September 22, 2016, December 7, 2016, January 17, 2017,

and “two other dates”; “prevented the probation officer from making home visits”

on August 17, 2016, and December 13, 2016; left Travis County, went to Maverick

County, and “got arrested on or about March 18th, 2017” and, on December 5, 2016,

“was in possession or in the presence of K2 and other things that appeared to be

related to criminal activity.” The court did not make any findings as to the other

allegations in the State’s motion to adjudicate appellant’s guilt.

When a trial judge’s orally pronounced sentence conflicts with the subsequent

written judgment, the oral pronouncement controls. Taylor v. State, 131 S.W.3d

497, 500 (Tex. Crim. App. 2004). We have the authority to modify a judgment when

we have the necessary information before us to do so. Edwards v. State, 497 S.W.3d

147, 164 (Tex. App.—Houston [1st Dist.] 2016, pet. ref’d); see, e.g., Turnbull v.

State, No. 03–11–00145–CR, 2013 WL 5966173, at *4 (Tex. App.—Austin Oct. 24,

2013, pet. ref’d) (mem. op., not designation for publication) (modifying judgment

adjudicating guilt to reflect trial court’s oral pronouncement of findings on

allegations supporting adjudication). Accordingly, we modify the judgment to

delete the trial court’s findings that appellant violated the conditions of community

supervision by “[f]ail[ing] to avoid the use of all narcotics, habit forming drugs,

4 alcoholic beverages, and controlled substances, as [she] submitted a positive urine

specimen of methamphetamine on 08/03/15”; “[f]ail[ing] to submit a breath or urine

specimen at the direction of the Probation Officer on 03/13/17”; “[f]ail[ing] to pay

all costs required: Delinquent $35.00”; “[f]ail[ing] to pay Court Costs: Delinquent

$105.00”; “[f]ail[ing] to pay Supervision Fees: Delinquent $350.00”; and

“[c]ommitt[ing] the subsequent criminal offense, on or about the 17th day of

January, in that [appellant], did then and there knowingly possess with intent to

deliver a controlled substance, to-wit: Indazole, Methyl Methoxy Oxobutane, and

Carboxamide and Indazole, Methoxy Dimethyl Oxobutaine, and Carboxamide in an

amount by aggregate weight, including any adulterants or dilutants, of four grams or

more but less than two hundred grams”; and “[c]ommitt[ing] the subsequent criminal

offense, on or about the 18th day of March, 2017, in that [she] did then and there

intentionally refuse to give [her] name to Christina Flores, a peace officer who had

lawfully arrested [appellant] and requested the information.” We further modify the

trial court’s judgment to reflect only the grounds orally pronounced by the trial

judge: “fail[ing] to report to the Probation Officer on 7/27/16, 9/06/16, 9/22/16,

12/07/16, 1/17/17, 03/06/17, and 03/14/17”; “[f]ail[ing] to permit the Probation

Officer to visit at home or elsewhere on 08/17/16 and 12/13/16”; and

“[c]ommitt[ing] the subsequent criminal offense on or about the 5th day of

December, 2016 in that [appellant], did then and there knowingly possess with intent

5 to deliver a controlled substance, to-wit: Indazole, Methyl Methoxy Oxobutane, and

Carboxamide and Indazole, Methoxy Dimethyl Oxobutaine, and Carboxamide in an

amount by aggregate weight, including any adulterants or dilutants , of four grams

or more but less than two hundred grams.”

We affirm the trial court’s judgment as modified and grant counsel’s motion

to withdraw.3 Attorney Gary E. Prust must immediately send appellant the required

notice and file a copy of the notice with the Clerk of this Court. See TEX. R. APP. P.

6.5(c). We dismiss any other pending motions as moot.

PER CURIAM

Panel consists of Chief Justice Radack and Justices Jennings and Bland. Do not publish. TEX. R. APP. P. 47.2(b).

3 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). 6