Manuel MacArio Morales v. State

Opinion

Opinion issued December 19, 2013

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-13-00029-CR ——————————— MANUEL MACARIO MORALES, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 178th District Court Harris County, Texas Trial Court Cause No. 1314289

MEMORANDUM OPINION

Appellant, Manuel Macario Morales, pleaded guilty, with an agreed

recommendation from the State, to the offense of evading arrest or detention. See

TEX. PENAL CODE ANN. § 38.04(b)(1) (West Supp. 2013). In accordance with

appellant’s plea agreement with the State, the trial court found sufficient evidence to find appellant guilty, but deferred making any finding regarding appellant’s guilt

and placed appellant on community supervision for a period of two years. See

TEX. CODE CRIM. PROC. ANN. art. 42.12 § 5(a) (West Supp. 2013). The State then

filed a motion to adjudicate appellant’s guilt. See id. §§ 5(b), 21(e). Appellant

pleaded true to all alleged violations of the terms of his community supervision.

After a hearing, the trial court found five alleged violations not true and four

alleged violations true, adjudicated appellant guilty, and sentenced appellant to

eighteen months in state jail and a fine of $300.00. See id. §§ 5(b), 21(b-2), 23.

Appellant timely filed a notice of appeal.

Appellant’s appointed counsel on appeal has filed a motion to withdraw,

along with a brief stating that the record presents no reversible error and the appeal

is without merit and is frivolous. See Anders v. California, 386 U.S. 738, 87 S. Ct.

1396 (1967).

Counsel’s brief meets the Anders requirements by presenting a professional

evaluation of the record and supplying us with references to the record and legal

authority. 386 U.S. at 744, 87 S. Ct. at 1400; see also High v. State, 573 S.W.2d

807, 812 (Tex. Crim. App. 1978). Counsel indicates that he has thoroughly

reviewed the record and is unable to advance any grounds of error that warrant

reversal. See Anders, 386 U.S. at 744, 87 S. Ct. at 1400; Mitchell v. State, 193

S.W.3d 153, 155 (Tex. App.—Houston [1st Dist.] 2006, no pet.).

2 Counsel has also informed us that he delivered a copy of the brief to

appellant and informed him of his right to examine the appellate record and to file

a response. See In re Schulman, 252 S.W.3d 403, 408 (Tex. Crim. App. 2008).

Appellant has not filed a pro se response.

We have independently reviewed the entire record in this appeal, and we

conclude that no reversible error exists in the record, there are no arguable grounds

for review, and the appeal is frivolous. See Anders, 386 U.S. at 744, 87 S. Ct. at

1400 (emphasizing that reviewing court—and not counsel—determines, after full

examination of proceedings, whether appeal is wholly frivolous); Garner v. State,

300 S.W.3d 763, 767 (Tex. Crim. App. 2009) (reviewing court must determine

whether arguable grounds for review exist); Bledsoe v. State, 178 S.W.3d 824,

826–27 (Tex. Crim. App. 2005) (same); Mitchell, 193 S.W.3d at 155 (same).

Appellant may challenge a holding that there are no arguable grounds for appeal by

filing a petition for discretionary review in the Texas Court of Criminal Appeals.

See Bledsoe, 178 S.W.3d at 827 & n.6.

We note that the trial court’s judgment includes a $300.00 fine. The record

shows, however, that the fine was not part of the trial court’s oral pronouncement

of appellant’s sentence. “[W]hen there is a variation between the oral

pronouncement of sentence and the written memorialization of the sentence, the

oral pronouncement controls.” Coffey v. State, 979 S.W.2d 326, 328 (Tex. Crim.

3 App. 1998); see also Taylor v. State, 131 S.W.3d 497, 500 (Tex. Crim. App. 2004).

An appellate court that has the necessary information before it may correct a trial

court’s written judgment, including a judgment adjudicating guilt after revocation

of deferred adjudication community supervision, to reflect the oral pronouncement.

See Taylor, 131 S.W.3d at 500–02; see also Smith v. State, No. 02-11-00295-CR,

2012 WL 2036467, at *2 (Tex. App.—Fort Worth June 7, 2012, no pet.) (in

Anders appeal, modifying judgment adjudicating guilt after revocation of deferred

adjudication community supervision so that it conformed with trial court’s oral

pronouncement).

Accordingly, we modify the trial court’s judgment to delete the imposition

of a $300.00 fine. We affirm the judgment of the trial court as modified and grant

counsel’s motion to withdraw.1 Attorney Franklin G. Bynum must immediately

send appellant the required notice and file a copy of the notice with the Clerk of

this Court. See TEX. R. APP. P. 6.5(c).

PER CURIAM

Panel consists of Justices Keyes, Higley, and Massengale.

Do not publish. TEX. R. APP. P. 47.2(b).

1 Appointed counsel still has a duty to inform appellant of the result of this appeal and that he may, on his own, pursue discretionary review in the Texas Court of Criminal Appeals. See Ex Parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997). 4