Andrew Nicholas Sheppard v. State

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-13-00550-CR

Andrew Nicholas Sheppard, Appellant

v.

The State of Texas, Appellee

FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 26TH JUDICIAL DISTRICT NO. 09-785-K26, HONORABLE PHILLIP O. VICK, JUDGE PRESIDING

MEMORANDUM OPINION

Appellant Andrew Nicholas Sheppard was placed on deferred-adjudication

community supervision after he pleaded guilty to one count of credit-card abuse. See Tex. Penal

Code § 32.31 (credit card or debit card abuse); Tex. Code Crim. Proc. art. 42.12, § 5 (deferred

adjudication; community supervision). Subsequently, the trial court found that appellant had

violated the conditions of his supervision. The court revoked appellant’s community supervision,

adjudicated him guilty of credit-card abuse, and assessed his punishment at two years’ confinement

in state jail. See Tex. Code Crim. Proc. art. 42.12, § 5; see also Tex. Penal Code § 12.35 (state jail

felony punishable by confinement in state jail for not more than two years or less than 180 days).

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

(1988). Appellant’s counsel provided appellant a copy of the brief along with a letter advising

appellant of his right to examine the record and file a pro se brief. See Anders, 386 U.S. at 744;

Garner, 300 S.W.3d at 766. No pro se brief or other written response has been filed.

Having reviewed the record, including appellate counsel’s brief and the record of the

revocation proceedings, we 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 ground for review and that the appeal

is frivolous. Counsel’s motion to withdraw is granted.

We note, however, that the judgment adjudicating guilt contains clerical errors. First,

the written judgment reflects “24 months in State Jail; 70 days jail credit; 1956.00 fine” as the

“Terms of Plea Agreement.” The record, however, demonstrates that this was not a plea-bargain

case, and there was no plea agreement. The written judgment also indicates that appellant’s “Plea

to Motion to Adjudicate” was “True” and that “upon being asked by the Court as to how the

defendant pleaded, [appellant] entered a plea of True to the allegations in the motion to revoke.”

The record reflects, however, that Appellant, pleaded “not true” to the allegations in the State’s First

Amended Motion to Adjudicate. In addition, the written judgment imposes a fine of $1,956.00, but

the record reflects that the trial court declined to impose a fine, stating “I’m not going to add a fine

to [the jail term]. You have enough money problems now anyway.” See Ex parte Madding,

70 S.W.3d 131, 135 (Tex. Crim. App. 2002) (when orally pronounced sentence and sentence in

written judgment vary, oral pronouncement controls). Finally, the written judgment imposes $500

in restitution even though no restitution was included in the trial court’s oral pronouncement of

2 sentence. See id.; see also Weir v. State, 278 S.W.3d 364, 365–367 (Tex. Crim. App. 2009)

(distinguishing “court costs” from other assessments, including restitution, which are punitive in

nature and thus considered part of sentence). This Court has authority to modify incorrect judgments

when the necessary information is available to do so. See Tex. R. App. P. 46.2(b); Bigley v. State,

865 S.W.2d 26, 27–28 (Tex. Crim. App. 1993). Accordingly, we modify the judgment by

(1) deleting “24 months in State Jail; 70 days jail credit; 1956.00 fine” as the “Terms of Plea

Agreement” and substituting “Not Applicable” as the “Terms of Plea Agreement”; (2) deleting

“True” as the appellant’s “Plea to Motion to Adjudicate” and substituting a plea of “Not True”;

(3) deleting the statement that appellant “entered a plea of True to the allegations in the motion to

revoke” and substituting the statement that appellant “entered a plea of Not True to the allegations

in the motion to revoke”; (4) striking the provision requiring appellant to pay a fine of $1,956; and

(5) striking the provision requiring appellant to pay restitution.

As modified, the judgment is affirmed.

____________________________________________ J. Woodfin Jones, Chief Justice

Before Chief Justice Jones, Justices Pemberton and Rose

Modified and, as Modified, Affirmed

Filed: February 4, 2014

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