Brandon Charles Canada v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: August 12, 2021
• Docket: 01-20-00021-CR
• Status: Published

Opinion

Opinion issued August 12, 2021

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-20-00021-CR ——————————— BRANDON CHARLES CANADA, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 182nd District Court Harris County, Texas Trial Court Case No. 1305834

MEMORANDUM OPINION

Appellant, Brandon Charles Canada, pleaded guilty without an agreed

punishment recommendation to the first-degree felony offense of aggravated

robbery with a deadly weapon.1 The trial court deferred adjudication of appellant’s

1 See TEX. PENAL CODE § 29.03(a)(2). guilt and placed appellant on community supervision for five years. The trial court

later extended the period of community supervision by an additional two years. The

State subsequently filed a motion to adjudicate appellant’s guilt, alleging that

appellant violated the terms of his community supervision by committing two new

offences of robbery and impersonating a police officer. Appellant pleaded “not true”

to the alleged violations. Following a hearing, the trial court found the allegations

true, adjudicated appellant guilty of aggravated robbery with a deadly weapon, and

sentenced appellant to thirteen years’ imprisonment. This sentence is within the

applicable range.2 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 that,

therefore, the appeal is without merit and is frivolous. See Anders v. California, 386

U.S. 738 (1967). Counsel’s brief meets the Anders requirements by presenting a

professional evaluation of the record and supplying this Court with references to the

record and legal authority. See id. at 744; 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 that he is unable to advance any grounds of error that warrant reversal.

See Anders, 386 U.S. at 744; Mitchell v. State, 193 S.W.3d 153, 155 (Tex. App.—

Houston [1st Dist.] 2006, no pet.).

2 See TEX. PENAL CODE § 12.32(a). 2 Appellant’s counsel has certified that he mailed a copy of the motion to

withdraw and the Anders brief to appellant and informed appellant of his right to file

a response and to access the record. See In re Schulman, 252 S.W.3d 403, 408 (Tex.

Crim. App. 2008). Furthermore, counsel certified that he sent appellant the form

motion for pro se access to the records for his response. See Kelly v. State, 436

S.W.3d 313, 322 (Tex. Crim. App. 2014). Appellant was provided a copy of the

record but did not file 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

grounds for review, and that therefore the appeal is frivolous. See Anders, 386 U.S.

at 744 (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–

28 (Tex. Crim. App. 2005) (reviewing court is not to address merits of each claim

raised in Anders brief or pro se response after determining there are no arguable

grounds for review); Mitchell, 193 S.W.3d at 155. 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.

3 Although there is no reversable error in the case, we note the trial court's

judgment does not accurately reflect the proceedings when listing appellant’s “Plea

to Motion to Adjudicate” as “True.” The record, instead, demonstrates that appellant

pleaded “Not True” to the motion to adjudicate. We have the authority to reform a

judgment to make the record speak the truth when we have the necessary information

before us to do so. See TEX. R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27–

28 (Tex. Crim. App. 1993); French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App.

1992); Nolan v. State, 39 S.W.3d 697, 698 (Tex. App.—Houston [1st Dist.] 2001,

no pet.). Accordingly, we modify the trial court's judgment to reflect that appellant

pleaded “Not True” to the motion to adjudicate.

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

motion to withdraw.3 See TEX. R. APP. P. 43.2(a). Attorney Kyle R. Sampson must

immediately send the required notice and file a copy of that 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 Justices Goodman, Hightower, and Rivas-Molloy.

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 Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim. App. 2005). 4