Flavio Charles Patino v. State

• Court: Court of Appeals of Texas
• Decided: September 9, 2011
• Docket: 07-11-00130-CR
• Status: Published

Opinion

NO. 07-11-00130-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

SEPTEMBER 9, 2011

FLAVIO CHARLES PATINO, APPELLANT

v.

THE STATE OF TEXAS, APPELLEE

FROM THE 110TH DISTRICT COURT OF BRISCOE COUNTY;

NO. 1135; HONORABLE WILLIAM P. SMITH, JUDGE

Before CAMPBELL and HANCOCK and PIRTLE, JJ.

MEMORANDUM OPINION

Appellant, Flavio Charles Patino, was convicted of unlawful possession of a

firearm1 and sentenced to confinement in the Institutional Division of the Texas

Department of Criminal Justice for 10 years. Appellant gave notice of appeal. We will

modify and affirm the judgment of the trial court.

Appellant=s attorney has filed an Anders brief and a motion to withdraw. Anders

v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed. 2d 498 (1967). In support of his

motion to withdraw, counsel certifies that he has diligently reviewed the record, and in

1 See TEX. PENAL CODE ANN. § 46.04(a)(2) (West 2011). his opinion, the record reflects no reversible error upon which an appeal can be

predicated. Id. at 744-45. In compliance with High v. State, 573 S.W.2d 807, 813

(Tex.Crim.App. 1978), counsel has candidly discussed why, under the controlling

authorities, there is no error in the trial court=s judgment. Additionally, counsel has

certified that he has provided appellant a copy of the Anders brief and motion to

withdraw and appropriately advised appellant of his right to file a pro se response in this

matter. Stafford v. State, 813 S.W.2d 503, 510 (Tex.Crim.App. 1991). The Court has

also advised appellant of his right to file a pro se response. Appellant filed a response.

By his Anders brief, counsel reviewed all grounds that could possibly support an appeal,

but concludes the appeal is frivolous. We have reviewed these grounds and made an

independent review of the entire record to determine whether there are any arguable

grounds which might support an appeal. See Penson v. Ohio, 488 U.S. 75, 109 S.Ct.

346, 102 L.Ed.2d 300 (1988); Bledsoe v. State, 178 S.W.3d 824 (Tex.Crim.App. 2005).

Additionally, we have reviewed the grounds set forth in appellant’s response. Id. We

have found no such arguable grounds and agree with counsel that the appeal is

frivolous.

We note the trial court’s judgment contains a special order that appellant repay

attorney’s fees in the amount of $1,120.00 to Briscoe County. The record contains no

determination by the court of appellant’s ability to pay such fees. TEX. CODE CRIM.

PROC. ANN. art. 26.05(g) (West Supp. 2010). Accordingly, we modify the trial court’s

judgment by deleting the language ordering appellant to repay attorney’s fees in the

amount of $1,120.00. See Mayer v. State, 274 S.W.3d 898, 902 (Tex.App.–Amarillo

2 2008), aff’d, 309 S.W.3d 552 (Tex.Crim.App. 2010) (modified judgment to delete like

order).

Accordingly, the motion to withdraw is granted, and the judgment is affirmed as

modified. 2 TEX. R. APP. P. 43.2(b).

Mackey K. Hancock Justice

Do not publish.

2 Counsel shall, within five days after this opinion is handed down, send his client a copy of the opinion and judgment, along with notification of appellant=s right to file a pro se petition for discretionary review. See TEX. R. APP. P. 48.4.