Nicolas Bradley Bardin v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: November 29, 2021
• Docket: 05-21-00053-CR
• Status: Published

Opinion

Grant and Affirm and Opinion Filed November 29, 2021

In The Court of Appeals Fifth District of Texas at Dallas No. 05-21-00052-CR No. 05-21-00053-CR No. 05-21-00054-CR

NICOLAS BRADLEY BARDIN, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 86th Judicial District Court Kaufman County, Texas Trial Court Cause Nos. 19-90316-86-F, 19-90317-86-F, & 19-90318-86-F

MEMORANDUM OPINION Before Justices Myers, Partida-Kipness, and Carlyle Opinion by Justice Myers Appellant Nicolas Bradley Bardin was charged in three cases with invasive

visual recording. He waived his right to a jury trial, entered open pleas of guilty,

and signed a stipulation of evidence. The trial court assessed punishment in each

case at 24 months in state jail, with the sentences to be served concurrently.

Appellant’s counsel has filed a motion to withdraw. The motion is supported

by a brief in which counsel professionally and conscientiously examines the record

and applicable law and concludes this appeal is frivolous and without merit.

Counsel certifies that he provided appellant with a copy of the brief and the motion to withdraw. The brief meets the requirements of Anders v. California, 386

U.S. 738 (1967). The brief presents a professional evaluation of the record showing

why, in effect, there are no arguable grounds to advance. See High v. State, 573

S.W.2d 807, 812–13 (Tex. Crim. App. [Panel Op.] 1978) (determining whether brief

meets requirements of Anders); see also Arevalos v. State, 606 S.W.3d 912, 915–16

(Tex. App.—Dallas 2020, no pet.) (citing High and concluding Anders brief in

support of motion to withdraw did not meet requirements of Anders and was

deficient as to form). We advised appellant by letter of his right to file a pro se

response, but he has not filed a pro se response. See Kelly v. State, 436 S.W.3d 313,

319–21 (Tex. Crim. App. 2014) (appellant has right to file pro se response to Anders

brief filed by counsel).

We have reviewed the record and counsel’s brief. See Bledsoe v. State, 178

S.W.3d 824, 826–27 (Tex. Crim. App. 2005) (explaining appellate court’s duty in

Anders cases). We agree the appeal is frivolous and without merit, and we find

nothing in the record that might arguably support the appeal.

Although not an arguable issue, we note that each judgment lists “Erleigh

Norville Wiley” as the only attorney for the State, when counsel’s brief and the

reporter’s record show “Justin King” represented the State at trial. When the record

provides the necessary information to correct inaccuracies in the trial court’s

judgment, we have the authority to reform the judgment to speak the truth. TEX. R.

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

–2– Asberry v. State, 813 S.W.2d 526, 529–30 (Tex. App.—Dallas 1991, pet. ref’d);

Shumate v State, No. 05-20-00197-CR, 2021 WL 4260768, at *3 (Tex. App.—

Dallas Sept. 20, 2021, no pet.). Accordingly, in each judgment, next to “Attorney

for State,” we will add the name “Justin King,” to reflect that the “Attorney for State”

was “Justin King and Erleigh Norville Wiley.”

We grant counsel’s motion to withdraw and, as modified, affirm the

judgments.

/Lana Myers// LANA MYERS 210052f.u05 JUSTICE 210053f.u05 210054f.u05 Do Not Publish TEX. R. APP. P. 47.2(b)

–3– Court of Appeals Fifth District of Texas at Dallas JUDGMENT

NICOLAS BRADLEY BARDIN, On Appeal from the 86th Judicial Appellant District Court, Kaufman County, Texas No. 05-21-00052-CR V. Trial Court Cause No. 19-90316-86- F. THE STATE OF TEXAS, Appellee Opinion delivered by Justice Myers. Justices Partida-Kipness and Carlyle participating.

Based on the Court’s opinion of this date, the judgment of the trial court is

MODIFIED as follows:

Under “Attorney for State,” “Erleigh Norville Wiley” is changed to “Justin King and Erleigh Norville Wiley.” As REFORMED, the judgment is AFFIRMED. The trial court is directed to

prepare a corrected judgment that reflects the modifications made in this Court’s

opinion and judgment in this case.

Judgment entered this 29th day of November, 2021.

–4– Court of Appeals Fifth District of Texas at Dallas JUDGMENT

NICOLAS BRADLEY BARDIN, On Appeal from the 86th Judicial Appellant District Court, Kaufman County, Texas No. 05-21-00053-CR V. Trial Court Cause No. 19-90317-86- F. THE STATE OF TEXAS, Appellee Opinion delivered by Justice Myers. Justices Partida-Kipness and Carlyle participating.

Based on the Court’s opinion of this date, the judgment of the trial court is

Under “Attorney for State,” “Erleigh Norville Wiley” is changed to “Justin King and Erleigh Norville Wiley.” As REFORMED, the judgment is AFFIRMED. The trial court is directed to

prepare a corrected judgment that reflects the modifications made in this Court’s

–5– Court of Appeals Fifth District of Texas at Dallas JUDGMENT

NICOLAS BRADLEY BARDIN, On Appeal from the 86th Judicial Appellant District Court, Kaufman County, Texas No. 05-21-00054-CR V. Trial Court Cause No. 19-90318-86- F. THE STATE OF TEXAS, Appellee Opinion delivered by Justice Myers. Justices Partida-Kipness and Carlyle participating.

Based on the Court’s opinion of this date, the judgment of the trial court is

Under “Attorney for State,” “Erleigh Norville Wiley” is changed to “Justin King and Erleigh Norville Wiley.” As REFORMED, the judgment is AFFIRMED. The trial court is directed to

prepare a corrected judgment that reflects the modifications made in this Court’s

–6–