Genipher Nicole MacHovsky v. State

• Court: Court of Appeals of Texas
• Decided: June 28, 2016
• Docket: 05-15-01566-CR
• Status: Published

Opinion

MODIFY and AFFIRM; and Opinion Filed June 28, 2016.

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-15-01566-CR

GENIPHER NICOLE MACHOVSKY, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 265th Judicial District Court Dallas County, Texas Trial Court Cause No. F15-57254-R

MEMORANDUM OPINION Before Justices Francis, Fillmore, and Schenck Opinion by Justice Schenck Genipher Nicole Machovsky waived a jury and pleaded guilty to fraudulent use or

possession of fifty or more items of identifying information. See TEX. PENAL CODE ANN.

§ 32.51(b), (c)(4). The trial court sentenced appellant to imprisonment for fifteen years. On

appeal, appellant’s attorney filed a brief in which he concludes the appeal is wholly frivolous and

without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738 (1967).

The brief presents a professional evaluation of the record showing why, in effect, there are no

arguable grounds to advance. See High v. State, 573 S.W.2d 807, 811–12 (Tex. Crim. App.

[Panel Op.] 1978). Counsel delivered a copy of the brief to appellant. We advised appellant of

her right to file a pro se response, but she did not file a pro se response. See Kelly v. State, 436 S.W.3d 313, 319–21 (Tex. Crim. App. 2014) (identifying duties of appellate courts and counsel

in Anders cases).

We have reviewed the record and counsel’s brief. See Bledsoe v. State, 178 S.W.3d 824,

826–27 (Tex. Crim. App. 2005) (explaining appellate court’s duty in Anders cases). We agree

the appeal is frivolous and without merit. We find nothing in the record that might arguably

support the appeal.

Although not an arguable issue, we note the trial court’s judgment incorrectly reflects there

was a plea bargain agreement. The record shows appellant entered an open plea of guilty to the

charges in the indictment. Accordingly, on our own motion, we modify the section of the judgment

entitled “terms of plea bargain” to state “open.” See TEX. R. APP. P. 43.2(b); Bigley v. State, 865

S.W.2d 26, 27–28 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529–30 (Tex. App.—

Dallas 1991, pet. ref'd).

As modified, we affirm the trial court’s judgment.

/David J. Schenck/ DAVID J. SCHENCK JUSTICE

Do Not Publish TEX. R. APP. P. 47

151566F.U05

–2– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

GENIPHER NICOLE MACHOVSKY, On Appeal from the 265th Judicial District Appellant Court, Dallas County, Texas Trial Court Cause No. F15-57254-R. No. 05-15-01566-CR V. Opinion delivered by Justice Schenck. Justices Francis and Fillmore participating. THE STATE OF TEXAS, Appellee

Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED as follows:

The section entitled “Terms of Plea Bargain” is modified to show “Open.”

Judgment entered this 28th day of June, 2016.

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