Manuel Medina Torres v. State

Opinion

Opinion issued March 26, 2013

In The Court of Appeals For The First District of Texas

NO. 01-11-00907-CR ____________

MANUEL MEDINA TORRES, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 178th District Court Harris County, Texas Trial Court Cause No. 1302035

MEMORANDUM OPINION

Appellant, Manuel Medina Torres, pleaded guilty, without an agreed

recommendation as to punishment, to the offense of possession with intent to

deliver cocaine weighing at least 400 grams. See TEX. HEALTH & SAFETY CODE

ANN. § 481.112(a), (f) (West 2010). The trial court sentenced appellant to 15 years in prison and imposed a $5,000 fine. The trial court certified that appellant has the

right to appeal. Appellant timely filed a notice of appeal.

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

along with an Anders brief stating that the record presents no reversible error and

therefore 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. See Anders, 386 U.S. at 744, 87 S. Ct. at 1400; see also High v. State,

573 S.W.2d 807, 812–13 (Tex. Crim. App. 1978). Counsel indicates that he has

thoroughly reviewed the record and that he 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.).

Counsel has informed us that he has 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, that there are no arguable

2 grounds for review, and that therefore 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 (reviewing court determines whether arguable grounds exist by

reviewing entire record). An appellant may challenge a holding that there are no

arguable grounds for appeal by filing a petition for discretionary review in the Court

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

The trial judge orally sentenced appellant to 15 years in prison and imposed a

$5,000 fine. The written judgment reflects the 15 year sentence, but does not reflect

the $5,000 fine. When the oral pronouncement of the sentence in open court

conflicts with the written judgment, the oral pronouncement controls. Thompson v.

State, 108 S.W.3d 287, 290 (Tex. Crim. App. 2003). The solution in such a case is

to modify the written judgment to conform to the sentence that was orally

pronounced in open court. Id. An appellate court has the power to correct a trial

court’s written judgment if the appellate court has the information necessary to do

so. Cobb v. State, 95 S.W.3d 664, 668 (Tex. App.—Houston [1st Dist.] 2002, no

3 pet.). This power does not depend upon a party’s calling an error to the court's

attention or raising the issue on appeal. See French v. State, 830 S.W.2d 607, 609

(Tex. Crim. App. 1992). An appellate court may modify the judgment in an Anders

case to reflect the judgment orally pronounced, affirm the judgment, and grant

counsel’s motion to withdraw. See Alexander v. State, 301 S.W.3d 361, 364 (Tex.

App.—Fort Worth 2009, no pet.) (granting counsel’s motion to withdraw and

affirming judgment as modified where judgment included fine that was not orally

pronounced).

Therefore, the trial court’s judgment is modified to include the $5,000 fine.

We affirm the judgment of the trial court as modified and grant counsel’s motion to

withdraw. 1 Attorney Don Cantrell must immediately send the notice required by

Texas Rule of Appellate Procedure 6.5(c) and file a copy of that notice with the

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

PER CURIAM

Panel consists of Justices Jennings, Bland, 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