Michael Brandon Garrett v. State

Opinion

In The Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06-18-00108-CR

MICHAEL BRANDON GARRETT, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 188th District Court Gregg County, Texas Trial Court No. 46938-A

Before Morriss, C.J., Burgess and Stevens, JJ. Memorandum Opinion by Chief Justice Morriss MEMORANDUM OPINION Following a bench trial, Michael Brandon Garrett was convicted of family violence assault,

enhanced. The trial court made a deadly-weapon finding and sentenced Garrett to twelve years’

incarceration. See TEX. PENAL CODE ANN. § 22.01(b)(2)(A) (West Supp. 2018).

Garrett’s appellate counsel has filed a brief that discusses the record and reviews the trial

proceedings in detail. After counsel’s professional evaluation of the record, he has concluded that

there are no arguable grounds to be advanced on appeal. This meets the requirements of Anders

v. California, 386 U.S. 738, 743–44 (1967); Stafford v. State, 813 S.W.2d 503, 509–10 (Tex. Crim.

App. 1991); and High v. State, 573 S.W.2d 807, 812–13 (Tex. Crim. App. [Panel Op.] 1978).

Counsel also filed a motion with this Court seeking to withdraw as counsel in this appeal.

Counsel mailed a copy of the brief and the motion to withdraw to Garrett on or about November 27,

2018, informing Garrett of his right to file a pro se response, his right to review the record of the

trial proceedings in doing so, and his right to petition the Texas Court of Criminal Appeals for

review should this Court affirm the trial court’s judgment.

On December 20, 2018, Garrett filed a motion for access to the record on appeal. On

January 3, 2019, we ordered our clerk’s office to provide Garrett a complete copy of the appellate

record in this case, and that paper copy of the record was then sent to Garrett. That order also set

February 11, 2019, as the deadline for Garrett to file any pro se response to his counsel’s Anders

brief. Garrett did not filed a pro se response and did not request an extension of time in which to

file such a response. In excess of sixty days has elapsed since counsel’s notice, a more than

adequate period of time. See In re Schulman, 252 S.W.3d 403, 409 (Tex. Crim. App. 2008) (orig.

proceeding).

2 However, in Anders cases, appellate courts “have the authority to reform judgments and

affirm as modified in cases where there is non-reversible error.” Ferguson v. State, 435 S.W.3d

291, 294 (Tex. App.—Waco 2014, pet. struck) (comprehensively discussing appellate cases that

have modified judgments in Anders cases).

The trial court’s judgment indicates that time credits are “N/A,” not applicable, but the trial

court, orally from the bench, indicated that it was giving Garrett “credit for any time served.”

Given our authority to modify the judgment to reflect the truth, we will modify the trial court’s

judgment to reflect that Garrett will receive credit for time served on this charge. See TEX. R. APP.

P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27–28 (Tex. Crim. App. 1993).

We modify the trial court’s judgment to reflect that Garrett shall receive credit for time

served on this charge. As so modified, the judgment of the trial court is affirmed. 1

Josh R. Morriss, III Chief Justice

Date Submitted: March 14, 2019 Date Decided: March 21, 2019

Do Not Publish

1 Since we agree that this case presents no reversible error, we also, in accordance with Anders, grant counsel’s request to withdraw from further representation of appellant in this case. See Anders, 386 U.S. at 744. No substitute counsel will be appointed. Should appellant desire to seek further review of this case by the Texas Court of Criminal Appeals, he must 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 (1) must be filed within thirty days from either the date of this opinion or the date on which the last timely motion for rehearing was overruled by this Court, see TEX. R. APP. P. 68.2, (2) must be filed with the clerk of the Texas Court of Criminal Appeals, see TEX. R. APP. P. 68.3, and (3) should comply with the requirements of Rule 68.4 of the Texas Rules of Appellate Procedure, see TEX. R. APP. P. 68.4. 3