NUMBER 13-15-00584-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
BRANDON MARSH, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 156th District Court of Bee County, Texas.
MEMORANDUM OPINION Before Justices Benavides, Perkes, and Longoria Memorandum Opinion by Justice Longoria
Appellant Brandon Marsh appeals his conviction and two-year sentence for
unauthorized use of a motor vehicle, a state jail felony. See TEX. PENAL CODE ANN.
§ 31.07 (West, Westlaw through 2015 R.S.). We affirm as modified. I. BACKGROUND
The State charged appellant with unauthorized use of a motor vehicle over his
failure to return a truck entrusted to him by his employer. See id. Appellant pled guilty
pursuant to a plea agreement which called for him to receive a suspended sentence of
eighteen months’ confinement in a state jail facility and be placed on community
supervision for the same length of time. The trial court accepted the plea of guilty but set
the sentencing hearing for a later date.
Before the sentencing hearing, appellant filed a motion to withdraw the plea
agreement and enter an open plea. Appellant’s trial counsel explained that appellant had
learned that he had been denied parole in another case for which he was incarcerated.
His counsel explained that appellant was concerned that he would be unable to comply
with the terms and conditions of community supervision while still incarcerated. The trial
court granted appellant’s motion, found him guilty of the offense, and imposed a sentence
of two years’ confinement in state jail, court costs, and no fine.
This appeal followed. Appellant’s appointed counsel has filed a motion to withdraw
supported by an Anders brief. See Anders v. California, 386 U.S. 738, 744 (1967).
II. ANDERS BRIEF
Pursuant to Anders v. California, appellant’s court-appointed appellate counsel
has filed a brief and a motion to withdraw with this Court, stating that his review of the
record yielded no grounds of error upon which an appeal can be predicated. See id.
Counsel’s brief meets the requirements of Anders as it presents a professional evaluation
demonstrating why there are no arguable grounds to advance on appeal. See In re
Schulman, 252 S.W.3d 403, 407 n.9 (Tex. Crim. App. 2008) (“In Texas, an Anders brief
2 need not specifically advance 'arguable' points of error if counsel finds none, but it must
provide record references to the facts and procedural history and set out pertinent legal
authorities.”) (citing Hawkins v. State, 112 S.W.3d 340, 343–44 (Tex. App.—Corpus
Christi 2003, no pet.)); Stafford v. State, 813 S.W.2d 503, 510 n.3 (Tex. Crim. App. 1991).
In compliance with Kelly v. State, 436 S.W.3d 313, 319 (Tex. Crim. App. 2014) and
High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel Op.] 1978), appellant’s
counsel carefully discussed why, under controlling authority, there is no reversible error
in the trial court's judgment.1 Counsel has informed this Court, in writing, that counsel
has: (1) notified the appellant that counsel has filed an Anders brief and a motion to
withdraw; (2) informed the appellant of his rights to file a pro se response,2 review the
record preparatory to filing that response, and seek discretionary review if the Court
concludes that the appeal is frivolous; and (3) provided appellant with a form motion for
pro se access to the appellate record, lacking only the appellant’s signature and the date
and including the mailing address for the court of appeals, with instructions to file the
motion within ten days. See Anders, 386 U.S. at 744; Kelly, 436 S.W.3d at 319; Stafford,
813 S.W.2d at 510 n.3; see also In re Schulman, 252 S.W.3d at 409 n.23. More than an
adequate time has passed, and appellant has not filed a pro se motion for access to the
1 Counsel informed us that he specifically considered whether: (1) appellant’s plea of guilty was knowing and voluntary; (2) the sentence imposed by the trial court constituted cruel and unusual punishment; and (3) appellant’s trial counsel provided constitutionally ineffective assistance. Counsel ultimately concluded that none of these issues were meritorious.
2 The Texas Court of Criminal Appeals has held that “the pro se response need not comply with
the rules of appellate procedure in order to be considered. Rather, the response should identify for the court those issues which the indigent appellant believes the court should consider in deciding whether the case presents any meritorious issues.” In re Schulman, 252 S.W.3d 403, 409 n.23 (Tex. Crim. App. 2008) (quoting Wilson v. State, 955 S.W.2d 693, 696–97 (Tex. App.—Waco 1997, no pet.)).
3 appellate record or a motion for extension of time to do so. No pro se response was filed,
and the State has also not filed a brief.
III. INDEPENDENT REVIEW & MODIFICATION
Upon receiving an Anders brief, we must conduct a full examination of all the
proceedings to determine whether the case is wholly frivolous. Penson v. Ohio, 488 U.S.
75, 80 (1988). We have reviewed the entire record and counsel’s brief, and we have
found nothing that would arguably support an appeal. See Bledsoe v. State, 178 S.W.3d
824, 827–28 (Tex. Crim. App. 2005) (“Due to the nature of Anders briefs, by indicating in
the opinion that it considered the issues raised in the briefs and reviewed the record for
reversible error but found none, the court of appeals met the requirement of Texas Rule
of Appellate Procedure 47.1.”); Stafford, 813 S.W.2d at 509. We have found no reversible
error in the record.
However, we note that contrary to the reporter’s record of the final hearing, the
judgment in this case reflects that the length of appellant’s sentence was eighteen months
and imposed pursuant to a plea agreement. When the oral pronouncement of sentence
and the written judgment vary, the oral pronouncement controls. Ex parte Madding, 70
S.W.3d 131, 135 (Tex. Crim. App. 2002). Appellate courts have the authority to modify a
judgment to make it speak the truth when an issue is called to the court’s attention by any
source. See TEX. R. APP. P. 43.2(b) (authorizing appellate courts to modify the judgment
and affirm as modified); French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992) (en
banc). Accordingly, we modify the judgment to reflect that appellant was sentenced to
confinement in a state jail facility for two years and that there was no plea bargain. See
TEX. R. APP. P. 43.2(b); see also Wiedenfeld v. State, 450 S.W.3d 905, 907–08 (Tex.
4 App.—San Antonio 2014, no pet.) (modifying the judgment in a case where counsel filed
Free access — add to your briefcase to read the full text and ask questions with AI
NUMBER 13-15-00584-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
BRANDON MARSH, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 156th District Court of Bee County, Texas.
MEMORANDUM OPINION Before Justices Benavides, Perkes, and Longoria Memorandum Opinion by Justice Longoria
Appellant Brandon Marsh appeals his conviction and two-year sentence for
unauthorized use of a motor vehicle, a state jail felony. See TEX. PENAL CODE ANN.
§ 31.07 (West, Westlaw through 2015 R.S.). We affirm as modified. I. BACKGROUND
The State charged appellant with unauthorized use of a motor vehicle over his
failure to return a truck entrusted to him by his employer. See id. Appellant pled guilty
pursuant to a plea agreement which called for him to receive a suspended sentence of
eighteen months’ confinement in a state jail facility and be placed on community
supervision for the same length of time. The trial court accepted the plea of guilty but set
the sentencing hearing for a later date.
Before the sentencing hearing, appellant filed a motion to withdraw the plea
agreement and enter an open plea. Appellant’s trial counsel explained that appellant had
learned that he had been denied parole in another case for which he was incarcerated.
His counsel explained that appellant was concerned that he would be unable to comply
with the terms and conditions of community supervision while still incarcerated. The trial
court granted appellant’s motion, found him guilty of the offense, and imposed a sentence
of two years’ confinement in state jail, court costs, and no fine.
This appeal followed. Appellant’s appointed counsel has filed a motion to withdraw
supported by an Anders brief. See Anders v. California, 386 U.S. 738, 744 (1967).
II. ANDERS BRIEF
Pursuant to Anders v. California, appellant’s court-appointed appellate counsel
has filed a brief and a motion to withdraw with this Court, stating that his review of the
record yielded no grounds of error upon which an appeal can be predicated. See id.
Counsel’s brief meets the requirements of Anders as it presents a professional evaluation
demonstrating why there are no arguable grounds to advance on appeal. See In re
Schulman, 252 S.W.3d 403, 407 n.9 (Tex. Crim. App. 2008) (“In Texas, an Anders brief
2 need not specifically advance 'arguable' points of error if counsel finds none, but it must
provide record references to the facts and procedural history and set out pertinent legal
authorities.”) (citing Hawkins v. State, 112 S.W.3d 340, 343–44 (Tex. App.—Corpus
Christi 2003, no pet.)); Stafford v. State, 813 S.W.2d 503, 510 n.3 (Tex. Crim. App. 1991).
In compliance with Kelly v. State, 436 S.W.3d 313, 319 (Tex. Crim. App. 2014) and
High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel Op.] 1978), appellant’s
counsel carefully discussed why, under controlling authority, there is no reversible error
in the trial court's judgment.1 Counsel has informed this Court, in writing, that counsel
has: (1) notified the appellant that counsel has filed an Anders brief and a motion to
withdraw; (2) informed the appellant of his rights to file a pro se response,2 review the
record preparatory to filing that response, and seek discretionary review if the Court
concludes that the appeal is frivolous; and (3) provided appellant with a form motion for
pro se access to the appellate record, lacking only the appellant’s signature and the date
and including the mailing address for the court of appeals, with instructions to file the
motion within ten days. See Anders, 386 U.S. at 744; Kelly, 436 S.W.3d at 319; Stafford,
813 S.W.2d at 510 n.3; see also In re Schulman, 252 S.W.3d at 409 n.23. More than an
adequate time has passed, and appellant has not filed a pro se motion for access to the
1 Counsel informed us that he specifically considered whether: (1) appellant’s plea of guilty was knowing and voluntary; (2) the sentence imposed by the trial court constituted cruel and unusual punishment; and (3) appellant’s trial counsel provided constitutionally ineffective assistance. Counsel ultimately concluded that none of these issues were meritorious.
2 The Texas Court of Criminal Appeals has held that “the pro se response need not comply with
the rules of appellate procedure in order to be considered. Rather, the response should identify for the court those issues which the indigent appellant believes the court should consider in deciding whether the case presents any meritorious issues.” In re Schulman, 252 S.W.3d 403, 409 n.23 (Tex. Crim. App. 2008) (quoting Wilson v. State, 955 S.W.2d 693, 696–97 (Tex. App.—Waco 1997, no pet.)).
3 appellate record or a motion for extension of time to do so. No pro se response was filed,
and the State has also not filed a brief.
III. INDEPENDENT REVIEW & MODIFICATION
Upon receiving an Anders brief, we must conduct a full examination of all the
proceedings to determine whether the case is wholly frivolous. Penson v. Ohio, 488 U.S.
75, 80 (1988). We have reviewed the entire record and counsel’s brief, and we have
found nothing that would arguably support an appeal. See Bledsoe v. State, 178 S.W.3d
824, 827–28 (Tex. Crim. App. 2005) (“Due to the nature of Anders briefs, by indicating in
the opinion that it considered the issues raised in the briefs and reviewed the record for
reversible error but found none, the court of appeals met the requirement of Texas Rule
of Appellate Procedure 47.1.”); Stafford, 813 S.W.2d at 509. We have found no reversible
error in the record.
However, we note that contrary to the reporter’s record of the final hearing, the
judgment in this case reflects that the length of appellant’s sentence was eighteen months
and imposed pursuant to a plea agreement. When the oral pronouncement of sentence
and the written judgment vary, the oral pronouncement controls. Ex parte Madding, 70
S.W.3d 131, 135 (Tex. Crim. App. 2002). Appellate courts have the authority to modify a
judgment to make it speak the truth when an issue is called to the court’s attention by any
source. See TEX. R. APP. P. 43.2(b) (authorizing appellate courts to modify the judgment
and affirm as modified); French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992) (en
banc). Accordingly, we modify the judgment to reflect that appellant was sentenced to
confinement in a state jail facility for two years and that there was no plea bargain. See
TEX. R. APP. P. 43.2(b); see also Wiedenfeld v. State, 450 S.W.3d 905, 907–08 (Tex.
4 App.—San Antonio 2014, no pet.) (modifying the judgment in a case where counsel filed
an Anders brief to make it consistent with the trial court’s oral pronouncement of
sentence).
IV. MOTION TO WITHDRAW
In accordance with Anders, appellant’s attorney has asked this Court for
permission to withdraw as counsel for appellant. See Anders, 386 U.S. at 744; see also
In re Schulman, 252 S.W.3d at 408 n.17 (citing Jeffery v. State, 903 S.W.2d 776, 779–80
(Tex. App.—Dallas 1995, no pet.) (“[I]f an attorney believes the appeal is frivolous, he
must withdraw from representing the appellant. To withdraw from representation, the
appointed attorney must file a motion to withdraw accompanied by a brief showing the
appellate court that the appeal is frivolous.”) (citations omitted)). We grant counsel’s
motion to withdraw. Within five days of the date of this Court’s opinion, counsel is ordered
to send a copy of this opinion and this Court’s judgment to appellant and to advise him of
his right to file a petition for discretionary review. 3 See TEX. R. APP. P. 48.4; see also In
re Schulman, 252 S.W.3d at 412 n.35; Ex parte Owens, 206 S.W.3d 670, 673 (Tex. Crim.
App. 2006).
3 No substitute counsel will be appointed. Should appellant wish to seek further review of this case by the Texas Court of Criminal Appeals, he must either retain an attorney to file a petition for discretionary review or file a pro se petition for discretionary review. Any petition for discretionary review must be filed within thirty days from the date of either this opinion or the last timely motion for rehearing or timely motion for en banc reconsideration that was overruled by this Court. See TEX. R. APP. P. 68.2. Any petition for discretionary review must be filed with the clerk of the Court of Criminal Appeals and should comply with the requirements of Texas Rule of Appellate Procedure 68.4. See TEX. R. APP. P. 68.3, 68.4.
5 V. CONCLUSION
We affirm the trial court’s judgment as modified in this opinion.
Nora L. Longoria Justice
Do not publish. TEX. R. APP. P. 47.2(b).
Delivered and filed the 14th day of April, 2016.