Joshua Michael Smith v. State

• Court: Court of Appeals of Texas
• Decided: May 30, 2013
• Docket: 02-11-00539-CR
• Status: Published

Opinion

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

NO. 02-11-00539-CR

JOSHUA MICHAEL SMITH APPELLANT

V.

THE STATE OF TEXAS STATE

----------

FROM CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY

MEMORANDUM OPINION 1

Joshua Michael Smith appeals the trial court’s judgment adjudicating him

guilty of possession of more than one gram of cocaine in a drug free zone and

sentencing him to seven years’ confinement.

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

withdraw as counsel and a brief in support of that motion. In the brief, counsel

avers that, in her professional opinion, the appeal is frivolous. Counsel’s brief 1 See Tex. R. App. P. 47.4. and motion meet the requirements of Anders v. California by presenting a

professional evaluation of the record demonstrating why there are no arguable

grounds for relief. 386 U.S. 738, 744–45, 87 S. Ct. 1396, 1400 (1967). We gave

appellant an opportunity to file a pro se brief, but he has not done so. The State

has not filed a brief.

Once an appellant’s court-appointed attorney files a motion to withdraw on

the ground that the appeal is frivolous and fulfills the requirements of Anders, we

are obligated to undertake an independent examination of the record. See

Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991); Mays v. State,

904 S.W.2d 920, 922–23 (Tex. App.––Fort Worth 1995, no pet.). Only then may

we grant counsel’s motion to withdraw. See Penson v. Ohio, 488 U.S. 75, 82–

83, 109 S. Ct. 346, 351 (1988).

We have carefully reviewed the record and counsel’s brief. The record

shows that after the trial court adjudicated appellant’s guilt, it did not include in its

oral pronouncement of sentence any mention of reparations. Yet, after this

appeal was perfected, the trial court signed a nunc pro tunc order amending the

special findings section of the judgment to include the following: “reparations in

the amount of $2,836.00.” Because the trial court did not orally pronounce

reparations as part of appellant’s sentence, that special finding must be deleted

from the judgment. See Taylor v. State, 131 S.W.3d 497, 502 (Tex. Crim. App.

2004); Smith v. State, No. 02-11-00295-CR, 2012 WL 2036467, at *2 (Tex.

App.—Fort Worth June 7, 2012, no pet.) (mem. op., not designated for

2 publication).

Except for the modification to the judgment described above, we agree

with counsel that the appeal is wholly frivolous and without merit; we find nothing

else in the record that might arguably support the appeal. See Bledsoe v. State,

178 S.W.3d 824, 827–28 (Tex. Crim. App. 2005); see also Meza v. State, 206

S.W.3d 684, 685 n.6 (Tex. Crim. App. 2006). Accordingly, we grant counsel’s

motion to withdraw. We modify the judgment (as amended by the nunc pro tunc

order) to delete “reparations in the amount of $2,836.00.” We affirm the

remainder of the trial court’s judgment as modified.

PER CURIAM

PANEL: LIVINGSTON, C.J.; DAUPHINOT and GABRIEL, JJ.

DO NOT PUBLISH Tex. R. App. P. 47.2(b)

DELIVERED: May 30, 2013