Robert Dwayne Robertson v. State

• Court: Court of Appeals of Texas
• Decided: September 6, 2011
• Docket: 06-11-00047-CR
• Status: Published

Opinion

                                                         In The

                                                Court of Appeals

                        Sixth Appellate District of Texas at Texarkana

                                                ______________________________

                                                             No. 06-11-00047-CR

                          ROBERT DEWAYNE ROBERTSON, Appellant

                                                                V.

                                     THE STATE OF TEXAS, Appellee

                                       On Appeal from the 115th Judicial District Court

                                                            Upshur County, Texas

                                                            Trial Court No. 15,652

                                          Before Morriss, C.J., Carter and Moseley, JJ.

                                        Memorandum Opinion by Chief Justice Morriss

                                                      MEMORANDUM OPINION

            Robert Dewayne Robertson appeals from his conviction on his open plea of guilty for possession of precursors with intent to manufacture methamphetamine.  The court assessed punishment at twenty years’ imprisonment. 

            Robertson’s attorney on appeal has filed a brief which discusses the record and reviews the proceedings in detail. Counsel has thus provided a professional evaluation of the record demonstrating why, in effect, there are no arguable grounds to be advanced.  This meets the requirements of Anders v. California, 386 U.S. 738 (1967); Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1981); High v. State, 573 S.W.2d 807 (Tex. Crim. App. [Panel Op.] 1978).

            Counsel mailed a copy of the brief and a letter to Robertson June 23, 2011, informing Robertson of his right to file a pro se response and of his right to review the record.  No response has been filed.  Counsel has also filed a motion with this Court seeking to withdraw as counsel in this appeal. 

            We have determined that this appeal is wholly frivolous. We have independently reviewed the clerk’s record and the reporter’s record, and find no genuinely arguable issue.  See Halbert v. Michigan, 545 U.S. 605, 623 (U.S. 2005).   We, therefore, agree with counsel’s assessment that no arguable issues support an appeal.  See Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim. App. 2005). 

            We do note, however, that the trial court’s judgment in this case states that the conviction was pursuant to a plea bargain agreement.  This is also reflected in the certification of right to appeal, which indicates that the conviction was based upon a plea agreement, but that the trial court granted permission to appeal.  Our review of the record shows this to be an open plea of guilty, with no plea bargain.  This Court has the authority to modify the judgment to make the record speak the truth when the matter has been called to our attention by any source.  French v. State, 830 S.W.2d 607 (Tex. Crim. App. 1992).  In Asberry v. State, 813 S.W.2d 526 (Tex. App.—Dallas 1991, pet. ref’d), the court noted that the authority of the appellate court to modify incorrect judgments is not dependent on request of any party; the appellate court may act sua sponte.  The Texas Rules of Appellate Procedure provide direct authority for this Court to modify the judgment of the trial court.  Tex. R. App. P. 43.2.  We modify the judgment to reflect that the conviction was pursuant to an open plea of guilty rather than a plea bargain.

            We affirm the judgment of the trial court.^[1]

                                                                                    Josh R. Morriss, III

                                                                                    Chief Justice

Date Submitted:          September 2, 2011     

Date Decided:             September 6, 2011

Do Not Publish          

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^[1]Since we agree 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.  No substitute counsel will be appointed.  Should appellant wish to seek further review of this case by the Texas Court of Criminal Appeals, appellant must either retain an attorney to file a petition for discretionary review or appellant must file a pro se petition for discretionary review.  Any petition for discretionary review must be filed within thirty days from the date of either this opinion or the last timely motion for rehearing or for en banc reconsideration was overruled by this Court.  See Tex. R. App. P. 68.2.  Any petition for discretionary review must be filed with the clerk of the Texas Court of Criminal Appeals.  See Tex. R. App. P. 68.3. (amended by the Texas Court of Criminal Appeals Misc. Docket No. 11-104, effective Sept. 1, 2011).  Any petition for discretionary review should comply with the requirements of Rule 68.4 of the Texas Rules of Appellate Procedure.  See Tex. R. App. P. 68.4.