John Tomack Williams v. State

• Court: Court of Appeals of Texas
• Decided: September 10, 2010
• Docket: 03-09-00169-CR
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-09-00599-CR NO. 03-09-00600-CR NO. 03-09-00601-CR NO. 03-09-00602-CR NO. 03-09-00603-CR

Cedric Marcell Garner, Appellant

v.

The State of Texas, Appellee

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 299TH JUDICIAL DISTRICT NOS. D-1-DC-07-206804, D-1-DC-07-206805, D-1-DC-07-302785, D-1-DC-08-300704, D-1-DC-08-301301, HONORABLE CHARLES F. BAIRD, JUDGE PRESIDING

MEMORANDUM OPINION

Appellant’s court-appointed attorney filed a brief concluding that the appeal is

frivolous and without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738

(1967), by presenting a professional evaluation of the record demonstrating why there are no

arguable grounds to be advanced. See also Penson v. Ohio, 488 U.S. 75 (1988); High v. State,

573 S.W.2d 807 (Tex. Crim. App. 1978); Currie v. State, 516 S.W.2d 684 (Tex. Crim. App. 1974);

Jackson v. State, 485 S.W.2d 553 (Tex. Crim. App. 1972); Gainous v. State, 436 S.W.2d 137 (Tex.

Crim. App. 1969). Appellant received a copy of counsel’s brief and was advised of his right to

examine the appellate record and to file a pro se brief. No pro se brief has been filed. We have reviewed the record and counsel’s brief and agree that the appeal is

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

See Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005). Counsel’s motion to

withdraw is granted.

We note, however, that the judgments of conviction contain certain clerical errors.

First, the judgments indicate that appellant pleaded “true” to the State’s motion to adjudicate, when

in fact he entered a plea of “not true.” Second, the judgments include a finding that appellant

violated all five of the grounds alleged in the State’s motion to adjudicate guilt. At the adjudication

hearing, however, the trial court found on the record that the State proved only two of the grounds

alleged—failure to participate in a drug or alcohol treatment plan and commission of the subsequent

offense of burglary of a habitation. The magistrate’s findings of fact, which were expressly adopted

by the trial court, also state that the State proved only these two grounds for adjudication, failing to

prove the allegations that appellant failed to work faithfully at suitable employment, failed to avoid

places or persons of disreputable or harmful character, and committed the subsequent offense of

organized criminal activity.

We modify the judgments of conviction to correct these clerical errors. See

Traylor v. State, No. 09-09-00384-CR, 2010 Tex. App. LEXIS 4749, at *2 (Tex. App.—Beaumont

June 23, 2010, no pet.) (mem. op., not designated for publication) (correcting clerical error in

judgment before affirming conviction in frivolous appeal under Anders); Tillman v. State, No. 14-08-

00053-CR, 2008 Tex. App. LEXIS 7882, at *4 (Tex. App.—Houston [14th Dist.] Oct. 16, 2008,

pet. ref’d) (mem. op., not designated for publication) (same). The judgments are modified to reflect

2 appellant’s plea of “not true” to the motion to adjudicate and to delete the language stating that

appellant violated the terms and conditions of his community supervision by (1) failing to work

faithfully at suitable employment, (2) failing to avoid places or persons of disreputable or harmful

character, and (3) committing the subsequent offense of organized criminal activity.

The judgments of conviction are affirmed as modified.

Diane M. Henson, Justice

Before Justices Patterson, Waldrop and Henson

Modified and, as Modified, Affirmed

Filed: September 10, 2010

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