Angel Jequiste Campbell v. State

Opinion

Opinion issued December 19, 2013

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-13-00585-CR ——————————— ANGEL JEQUISTE CAMPBELL, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 252nd District Court Jefferson County, Texas Trial Court Cause No. 13-16338

MEMORANDUM OPINION

Appellant, Angel Jequiste Campbell, pleaded guilty, with an agreed

recommendation from the State, to the offense of theft. See TEX. PENAL CODE

ANN. § 31.03(a), (e)(4) (West Supp. 2013). In accordance with appellant’s plea

agreement with the State, the trial court found sufficient evidence to find appellant guilty, but deferred making any finding regarding appellant’s guilt and placed

appellant on community supervision for a period of three years. See TEX. CODE

CRIM. PROC. ANN. art. 42.12 § 5(a) (West Supp. 2013). The State then filed a

motion to adjudicate appellant’s guilt. See id. §§ 5(b), 21(e). Appellant pleaded

true to all alleged violations of the terms of her community supervision. After a

hearing, the trial court found all alleged violations true, adjudicated appellant

guilty, and sentenced appellant to two years’ confinement. See id. §§ 5(b), 21(b-

2), 23. 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. See Anders, 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 Counsel has also informed us that he delivered a copy of the brief to

appellant and informed her of her 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, 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 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 (same).

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.

We note that the State has advised the Court that there appears to be a

clerical error on page 2 of the judgment that assesses a $500.00 fine against

appellant. The record shows, however, that the fine was not part of the trial court’s

pronouncement of appellant’s sentence. “[W]hen there is a variation between the

oral pronouncement of sentence and the written memorialization of the sentence,

3 the oral pronouncement controls.” Coffey v. State, 979 S.W.2d 326, 328 (Tex.

Crim. App. 1998); see also Taylor v. State, 131 S.W.3d 497, 500 (Tex. Crim. App.

2004). An appellate court that has the necessary information before it may correct

a trial court’s written judgment, including a judgment adjudicating guilt after

revocation of deferred adjudication community supervision, to reflect the oral

pronouncement. See Taylor, 131 S.W.3d at 500–02; see also Smith v. State, No.

02-11-00295-CR, 2012 WL 2036467, at *2 (Tex. App.—Fort Worth June 7, 2012,

no pet.) (in Anders appeal, modifying judgment adjudicating guilt after revocation

of deferred adjudication community supervision so that it conformed with trial

court’s oral pronouncement).

Accordingly, we modify the trial court’s judgment to delete any imposition

of a $500.00 fine. We affirm the judgment of the trial court as modified and grant

counsel’s motion to withdraw.1 Attorney David W. Barlow 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 Keyes, Higley, 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 she may, on her own, pursue discretionary review in the Court of Criminal Appeals. See Ex parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997). 4