Ryan Robert Sessions v. the State of Texas

Opinion

NUMBER 13-21-00216-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

RYAN ROBERT SESSIONS, Appellant,

v.

THE STATE OF TEXAS, Appellee.

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

MEMORANDUM OPINION Before Chief Justice Contreras and Justices Benavides and Longoria Memorandum Opinion by Justice Benavides

Appellant Ryan Robert Sessions appeals from a judgment revoking his community

supervision and adjudicating him guilty of possession of a controlled substance in penalty

group one, in the amount of less than a gram, a state jail felony. See TEX. HEALTH &

SAFETY CODE ANN. § 481.115(b). The trial court sentenced Sessions to two years’

incarceration and ordered him to pay a $500 fine and $180 in restitution. See TEX. PENAL CODE ANN. § 12.35(a)–(b). Sessions’s court-appointed appellate counsel filed an Anders

brief stating that there are no arguable grounds for appeal. See Anders v. California, 386

U.S. 738, 744 (1967). We affirm as modified.

I. ANDERS BRIEF

Pursuant to Anders v. California, Sessions’s court-appointed appellate counsel

filed a brief and a motion to withdraw with this Court, stating that his review of the record

yielded no grounds of reversible error upon which an appeal can be predicated. See id.

Counsel’s brief meets the requirements of Anders as it presents a professional evaluation

demonstrating why there are no arguable grounds to advance on appeal. See In re

Schulman, 252 S.W.3d 403, 407 n.9 (Tex. Crim. App. 2008) (orig. proceeding) (“In Texas,

an Anders brief need not specifically advance ‘arguable’ points of error if counsel finds

none, but it must 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–Edinburg 2003, no pet.))); Stafford v. State, 813 S.W.2d 503, 510

n.3 (Tex. Crim. App. 1991).

In compliance with High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel

Op.] 1978) and Kelly v. State, 436 S.W.3d 313, 319–22 (Tex. Crim. App. 2014),

Sessions’s counsel carefully discussed why, under controlling authority, there is no

reversible error in the trial court’s judgment. Sessions’s counsel also informed this Court

in writing that he: (1) notified Sessions that counsel filed an Anders brief and a motion to

withdraw; (2) provided Sessions with copies of both pleadings; (3) informed Sessions of

his right to file a pro se response, to review the record prior to filing a response, and to

2 seek discretionary review in the Texas Court of Criminal Appeals if this Court finds that

the appeal is frivolous; and (4) provided Sessions with a form motion for pro se access to

the appellate record with instructions to sign and file the motion with the court of appeals

within ten days by mailing it to the address provided. See Anders, 386 U.S. at 744; Kelly,

436 S.W.3d at 319–20; Stafford, 813 S.W.2d at 510 n.3; see also In re Schulman, 252

S.W.3d at 409 n.23. Sessions requested access to the appellate record, and pursuant to

our order, the trial court clerk has provided written verification to this Court that the

appellate record was provided to Sessions. See Kelly, 436 S.W.3d at 321. An adequate

amount of time has passed, and Sessions has not filed a pro se response.

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. Penson v. Ohio, 488 U.S.

75, 80 (1988). We have reviewed counsel’s brief and the entire record, and we have found

nothing that would support a finding of reversible error. See Bledsoe v. State, 178 S.W.3d

824, 827–28 (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 met the requirement of Texas Rule

of Appellate Procedure 47.1.”); Stafford, 813 S.W.2d at 509.

We note, though, that there appear to be two clerical errors in the trial court’s

judgment adjudicating guilt. The record reflects that Sessions pleaded not true to the

allegations raised in the State’s motion to adjudicate guilt and that, though Sessions

entered into a plea bargain at the time he initially pleaded guilty and was sentenced to

3 community supervision, the trial court’s sentence upon adjudication was not the result of

a plea bargain. However, the judgment indicates that he pleaded “TRUE” and lists the

“Terms of the Plea Bargain” as two years community supervision and payment of a $500

fine and $180 in restitution. We have the authority to modify incorrect judgments when

the necessary information is available to do so. See TEX. R. APP. P. 43.2(b); Bigley v.

State, 865 S.W.2d 26, 27–28 (Tex. Crim. App. 1993); Ferguson v. State, 435 S.W.3d 291,

294 (Tex. App.—Waco 2014, pet. struck). Accordingly, the trial court’s judgment will be

modified to (1) add “NOT” before “TRUE” in the portion of the judgment addressing

Sessions’s plea to the allegations in the motion to adjudicate, and (2) alter the “Terms of

the Plea Bargain” section to state “NO PLEA BARGAIN.”

III. MOTION TO WITHDRAW

In accordance with Anders, Sessions’s counsel asked this Court for permission to

withdraw as counsel. 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.)). 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 this opinion and this Court’s judgment to

Sessions and to advise him of his right to file a petition for discretionary review.1 See TEX.

R. APP. P. 48.4; see also In re Schulman, 252 S.W.3d at 412 n.35; Ex parte Owens, 206

1 No substitute counsel will be appointed. If Sessions seeks 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 must be filed within thirty days from the date of either this opinion or the last timely motion for rehearing or timely motion for en banc reconsideration that was overruled by this Court. See TEX. R. APP. P. 68.2. A petition for discretionary review must be filed with the clerk of the Texas Court of Criminal Appeals. See id. R. 68.3. Any petition for discretionary review should comply with the requirements of Texas Rule of Appellate Procedure 68.4. See id. R. 68.4. 4 S.W.3d 670, 673 (Tex. Crim. App. 2006).

IV. CONCLUSION

We affirm the trial court’s judgment as modified.

GINA M. BENAVIDES Justice

Do not publish. TEX. R. APP. P. 47.2(b).

Delivered and filed on the 24th day of February, 2022.