Michael Anthony Brasfield v. State

• Court: Court of Appeals of Texas
• Decided: August 25, 2009
• Docket: 13-08-00699-CR
• Status: Published

Opinion

NUMBER 13-08-00699-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

MICHAEL ANTHONY BRASFIELD, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 36th District Court of San Patricio County, Texas.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Yañez and Benavides Memorandum Opinion by Justice Yañez

Appellant, Michael Anthony Brasfield, pleaded guilty in 2007 to one count of

aggravated sexual assault, a first-degree felony.1 The trial court deferred adjudication,

placed appellant on community supervision for five years, and ordered him to pay a fine

of $1,500 and court costs. In September 2008, the State filed a motion to revoke, alleging

various violations of the terms of his community supervision. Appellant answered “true”

1 See T EX . P EN AL C OD E A N N . § 22.021 (Vernon Supp. 2008). to some of the violations, and “not true” to others. Following a hearing, the trial court

adjudicated him guilty and sentenced him to ten years’ imprisonment in the Institutional

Division of the Texas Department of Criminal Justice. Appellant appeals the revocation

of his community supervision.2

Appellant’s appellate counsel, concluding that “the appeal in this cause is frivolous

and without merit,” filed an Anders3 brief, in which she reviewed the merits, or lack thereof,

of the appeal. We modify the judgment, and as modified, affirm.4

I. DISCUSSION

Pursuant to Anders v. California,5 appellant’s court-appointed appellate counsel has

filed a brief with this Court, stating that her review of the record yielded no grounds or error

upon which an appeal can be predicated. Although counsel’s brief does not advance any

arguable grounds of error, it does present a professional evaluation of the record

demonstrating why there are no arguable grounds to be advanced on appeal.6

In compliance with High v. State,7 appellant’s counsel has carefully discussed why,

under controlling authority, there are no errors in the trial court’s judgment. Counsel has

informed this Court that she has: (1) examined the record and found no arguable grounds

2 W e note that the record contains the trial court’s certification, which states that this case “is not a plea-bargain case, and the defendant has the right of appeal.” See T EX . R. A PP . P. 25.2 (a)(2).

3 See Anders v. California, 386 U.S. 738, 744 (1967).

4 See T EX . R. A PP . P. 43.2(b).

5 See Anders, 386 U.S. at 744.

6 See In re Schulman, 252 S.W .3d 403, 407 n.9 (Tex. Crim . App. 2008) (“In Texas, an Anders brief need not specifically advance ‘arguable’ points of error if counsel finds none, but it m ust provide record references to the facts and procedural history and set out pertinent legal authorities.”) (citing Hawkins v. State, 112 S.W .3d 340, 343-44 (Tex. App.–Corpus Christi 2003, no pet.)); Stafford v. State, 813 S.W .2d 503, 510 n.3 (Tex. Crim . App. 1991).

7 High v. State, 573 S.W .2d 807, 813 (Tex. Crim . App. [Panel Op.] 1978).

2 to advance on appeal, (2) served a copy of the brief and counsel’s motion to withdraw on

appellant, and (3) informed appellant of his right to review the record and to file a pro se

response.8 More than an adequate period of time has passed, and appellant has not filed

a pro se response.9

II. INDEPENDENT REVIEW

Upon receiving an Anders brief, we must conduct a full examination of all the

proceedings to determine whether the case is wholly frivolous.10 We have reviewed the

entire record and counsel’s brief and have found nothing that would arguably support an

appeal.11

In our review of the record, however, we note that there is a variation between the

oral pronouncement of sentence and the written judgment. The judgment states that the

sentence is ten years’ imprisonment and a $1,500 fine. However, the sentence, as

announced in open court, was as follows:

[Court]: . . . I’m going to find you guilty of the offense of aggravated sexual assault as alleged in the indictment in this case, assess punishment at ten years[‘] confinement in the Institutional Division of the Texas Department of Criminal Justice. No fine will be assessed in this particular matter, fine is not an issue.

When there is a variation between the oral pronouncement of sentence and the

8 See Anders, 386 U.S. at 744; Stafford, 813 S.W .2d at 510 n.3; see also In re Schulman, 252 S.W .3d at 409 n.23. The Texas Court of Crim inal Appeals has held that “the pro se response need not com ply with the rules of appellate procedure in order to be considered. Rather, the response should identify for the court those issues which the indigent appellant believes the court should consider in deciding whether the case presents any m eritorious issues.” In re Schulman, 252 S.W .3d at 409 n.23 (quoting W ilson v. State, 955 S.W .2d 693, 696-97 (Tex. App.–W aco 1997, no pet.)).

9 See In re Schulman, 252 S.W .3d at 409.

10 Penson v. Ohio, 488 U.S. 75, 80 (1988).

11 See Bledsoe v. State, 178 S.W .3d 824, 826-28 (Tex. Crim . App. 2005) (“Due to the nature of Anders briefs, by indicating in the opinion that it considered the issues raised in the briefs and reviewed the record for reversible error but found none, the court of appeals m et the requirem ent of Texas Rule of Appellate Procedure 47.1.”); Stafford, 813 S.W .2d at 509.

3 written memorialization of the sentence, the oral pronouncement controls.12 Here, the

record is clear that no fine was imposed.

When, as here, the court of appeals has the necessary data and evidence before

it for reformation, an erroneous judgment may be reformed on appeal.13 We will reform the

judgment to delete the $1,500 fine. As reformed, we affirm the judgment of the trial court.

III. MOTION TO WITHDRAW

In accordance with Anders, appellant’s attorney has asked this Court for permission

to withdraw as counsel for appellant.14 We grant counsel’s motion to withdraw. Within five

days of the date of this Court’s opinion, counsel is ordered to send a copy of the opinion

and judgment to appellant and to advise appellant of his right to file a petition for

discretionary review.15

LINDA REYNA YAÑEZ, Justice

Do not publish. TEX . R. APP. P. 47.2(b). Memorandum Opinion delivered and filed this the 25th day of August, 2009.

12 See Coffey v. State, 979 S.W .2d 326, 328 (Tex. Crim . App. 1998).

13 See T EX . R. A PP . P. 43.2(b); Bigley v. State, 865 S.W .2d 26, 27 (Tex. Crim . App. 1993).

14 See Anders, 386 U.S. at 744; see also In re Schulman, 252 S.W .3d at 408 n.17 (citing Jeffery v. State, 903 S.W .2d 776, 779-80 (Tex. App.–Dallas 1995, no pet.) (noting that “[i]f an attorney believes the appeal is frivolous, he m ust withdraw from representing the appellant. To withdraw from representation, the appointed attorney m ust file a m otion to withdraw accom panied by a brief showing the appellate court that the appeal is frivolous.”) (citations om itted)).

15 See T EX . R. A PP . P. 48.4; see also In re Schulman, 252 S.W .3d at 412 n.35; Ex parte Owens, 206 S.W .3d 670, 673 (Tex. Crim . App. 2006). No substitute counsel will be appointed. Should appellant wish to seek further review of this case by the Texas Court of Crim inal Appeals, he m ust either retain an attorney to file a petition for discretionary review or file a pro se petition for discretionary review. Any petition for discretionary review m ust be filed within thirty days from the date of either this opinion or the last tim ely m otion for rehearing that was overruled by this Court. See T EX . R. A PP . P. 68.2. Any petition for discretionary review m ust be filed with this Court, after which it will be forwarded to the Texas Court of Crim inal Appeals. See T EX . R. A PP . P. 68.3; 68.7. Any petition for discretionary review should com ply with the requirem ents of Rule 68.4 of the Texas Rules of Appellate Procedure. See T EX . R. A PP . P. 68.4.