Cory Ray Posey v. State

• Court: Court of Appeals of Texas
• Decided: August 31, 2004
• Docket: 01-03-00980-CR
• Status: Published

Opinion

Opinion issued August 31, 2004

In The

Court of Appeals

For The

First District of Texas

____________

NO. 01-03-00980-CR

COREY RAY POSEY, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 209th District Court

Harris County, Texas

Trial Court Cause No. 824392

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MEMORANDUM OPINION

               Appellant, Corey Ray Posey, was indicted for the offense of aggravated robbery. The case was first assigned to a court having juvenile jurisdiction because appellant was 16 years of age when the crime was committed. See Tex. Penal Code Ann. § 8.07(b) (Vernon 2003 & Supp. 2004). The juvenile court waived jurisdiction and the case was assigned to a criminal district court. See Tex. Fam. Code Ann. § 54.02(a)(2)(A) (Vernon 2002). Appellant pleaded guilty, and the trial court deferred adjudication of guilt, placing appellant on community supervision for 10 years. The State subsequently filed a motion to adjudicate guilt to which appellant pleaded not true. After a hearing, the trial court found that appellant had violated the terms and conditions of his community supervision, found appellant guilty of aggravated robbery, and assessed his punishment at confinement for 12 years. We affirm the trial court’s judgment, as modified.

               Appellant’s court-appointed counsel filed a motion to withdraw as counsel and a brief concluding that this appeal is without merit. Counsel’s brief meets the requirements of Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1396, 1400 (1967), by presenting a professional evaluation of the record that demonstrates the lack of arguable grounds of error. See High v. State, 573 S.W.2d 807, 811 (Tex. Crim. App. 1978); Moore v. State, 845 S.W.2d 352, 353 (Tex. App.—Houston [1st Dist.] 1992, pet. ref’d).

               Counsel represents that she served a copy of the brief on appellant. Counsel also advised appellant of his right to examine the appellate record and file a pro se brief. See Stafford v. State, 813 S.W.2d 503, 510 (Tex. Crim. App. 1991). More than 30 days have passed, and appellant has not filed a pro se brief. We have carefully reviewed the record and counsel’s brief. We find no reversible error in the record, and agree that the appeal is without merit.

               However, we do find nonreversible error in the judgment: it reads that appellant entered a plea of “true,” and that there was a plea bargain agreement between appellant and the State. We may correct and modify the judgment of a trial court to make the record speak the truth when we have the necessary data and information to do so, or to make any appropriate order as the law and nature of the case may require. See Campbell v. State, 900 S.W.2d 763, 773 (Tex. App.—Waco 1995, no pet.); Tex. R. App. P. 43.2(b), 43.6. Accordingly, we modify the trial court’s judgment to read that appellant entered a plea of “not true” without a plea bargain agreement.

               We affirm the judgment, as modified.

               We grant counsel’s motion to withdraw. See Stephens v. State, 35 S.W.3d 770, 771 (Tex. App.—Houston [1st Dist.] 2000, no pet.).

PER CURIAM

Panel consists of Justices Taft, Jennings, and Hanks.

Do not publish. Tex. R. App. P. 47.2(b).