Genipher Nicole MacHovsky v. State

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Do Not Publish TEX.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

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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.”

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

Judgment entered this 28th day of June, 2016.