Gary Lee Bilbrey v. State

• Court: Court of Appeals of Texas
• Decided: November 23, 2015
• Docket: 07-15-00240-CR
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-15-00240-CR

GARY LEE BILBREY, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 47th District Court Potter County, Texas Trial Court No. 69,659-A, Honorable Dan L. Schaap, Presiding

November 23, 2015

MEMORANDUM OPINION Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

Appellant Gary Lee Bilbrey was indicted for the third-degree felony offense of

assault with bodily injury of a family member, having been convicted of assault with

bodily injury of a family member previously.1 He pled not guilty and the case was tried

to the bench. The complainant testified appellant struck her in the face with his hand,

cutting her lip. This was documented in police photographs admitted in evidence.

1 TEX. PENAL CODE ANN. 22.01(b)(2)(A) (West Supp. 2015). According to the complainant’s testimony, at the time of the occurrence she and

appellant were involved in a dating relationship. The State’s evidence also included a

certified copy of a 2013 judgment convicting appellant under Penal Code Chapter 22.01

for assault causing bodily injury, family violence. The complainant testified she also

was the victim of the assault that led to the 2013 conviction, and that she and appellant

were living together when he assaulted her on that occasion. The court found appellant

guilty of the charged offense and sentenced him to two years’ confinement in prison. A

fine was not assessed. Appellant timely appealed.

Appellant’s court-appointed appellate attorney has filed a motion to withdraw

from the representation supported by an Anders brief.2 Counsel points out in his brief

that the judgment incorrectly states appellant pled guilty to the charged offense.

Otherwise, he concludes the record fails to show any arguably meritorious issue

capable of supporting the appeal. We will grant counsel’s motion to withdraw, modify

the judgment to state that appellant entered a not-guilty plea to the charged offense,

and affirm the judgment as modified.

In his Anders brief, counsel demonstrates a thorough review of the record. He

expressly states the case presents no reversible error and, aside from the erroneous

statement of appellant’s plea, no grounds exist for predicating an appeal. In his motion

to withdraw, counsel states he provided appellant a copy of the motion by certified and

regular delivery mail. In a letter to appellant, counsel states he provided his client with a

copy of the Anders brief and a copy of the record. Through the letter counsel notified

2 See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967) and In re Schulman, 252 S.W.3d 403 (Tex. Crim. App. 2008) (orig. proceeding).

2 appellant of his right to file a pro se response. See Kelly v. State, 436 S.W.3d 313, 320

n.22 (Tex. Crim. App. 2014); Johnson v. State, 885 S.W.2d 641, 645 (Tex. App.—Waco

1994, pet. refused). By letter, we also notified appellant of his opportunity to submit a

response to the Anders brief. Appellant filed a response which we considered in our

review of the record.

In conformity with the standards set out by the United States Supreme Court, we

will not rule on the motion to withdraw until we have independently examined the record.

Nichols v. State, 954 S.W.2d 83, 86 (Tex. App.—San Antonio 1997, no pet.). Should

we determine the appeal has merit, the case will be remanded to the trial court for

appointment of new counsel. Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App.

1991).

We have independently examined the entire record to determine the existence of

any arguable grounds capable of supporting an appeal. 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).

As noted, the written judgment states appellant pled guilty to the charged

offense. However, the reporter’s record contains appellant’s not-guilty plea entered in

open court. We therefore modify the judgment so that it states appellant pled not guilty

to the charged offense. See Jackson v. State, Nos. 05-13-00579-CR & 05-13-00580-

CR, 2014 Tex. App. LEXIS 9059, at *11 (Tex. App.—Dallas Aug. 14, 2014, no pet.)

(mem. op., not designated for publication) (explaining that where the record provides

3 the information necessary to correct an inaccuracy in the judgment, an appellate court

has the authority to reform the judgment “to speak the truth”).

Otherwise, we find the record presents no arguably meritorious grounds for

review. We therefore grant counsel’s motion to withdraw3 and, as modified, affirm the

judgment of the trial court. TEX. R. APP. P. 43.2(b).

James T. Campbell Justice

Do not publish.

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