Opinion
No. 04-20-00015-CR
01-27-2021
Bronwen Victoria MCHENRY, Appellant v. The STATE of Texas, Appellee
MEMORANDUM OPINION
From the 25th Judicial District Court, Guadalupe County, Texas
Trial Court No. 18-0847-CR-A
Honorable Jessica Crawford, Judge Presiding PER CURIAM Sitting: Rebeca C. Martinez, Chief Justice Patricia O. Alvarez, Justice Luz Elena D. Chapa, Justice AFFIRMED AS MODIFIED
On December 3, 2019, the trial court entered a judgment of conviction against appellant Bronwen Victoria McHenry for possession of a controlled substance, namely methamphetamine, in an amount less than one gram. The trial court sentenced McHenry to two years' confinement. After considering this case without briefs, we modify the trial court's judgment and affirm as modified.
DISCUSSION
In this case, McHenry represents herself pro se on appeal and did not file an appellate brief despite being given the opportunity to do so by us. We ultimately abated the appeal and remanded the cause to the trial court for a hearing to determine whether McHenry had abandoned the appeal, was indigent, and should be appointed counsel. See TEX. R. APP. P. 38.8(b)(2). In accordance with our order, the trial court held a hearing on September 3, 2020, but McHenry did not appear. At the hearing, the trial court noted that its records showed that McHenry had been released on parole from the Texas Department of Criminal Justice on or about July 17, 2020. The trial court further noted it had sent a notice of the September hearing to McHenry's last known address prior to incarceration by certified and regular mail, but the notices were returned unclaimed.
The trial court ultimately found that although McHenry stated it was her desire to appeal her sentence when she was sentenced on December 3, 2019, she has made no effort to contact the trial court since her release from the Texas Department of Criminal Justice. Because McHenry did not respond to the trial court's notice of setting or appear at the abandonment hearing, the trial court also noted it was unable to review McHenry's indigency.
In light of the foregoing, we construed the trial court's finding that appellant has had no contact with the trial court since her release from custody as a finding that appellant no longer desired to prosecute the appeal. See Lopez v. State, No. 04-18-00335-CR, 2019 WL 208564, at *1 (Tex. App.—San Antonio Jan. 16, 2019, no pet.) (mem. op., not designated for publication) (describing trial court's determination that pro se appellant had abandoned appeal based on failure to attend hearing after notice had been sent to appellant's last known address). Under these circumstances, we may consider the appeal without briefs pursuant to Texas Rule of Appellate Procedure 38.8(b)(4). TEX. R. APP. P. 38.8(b)(4) (when "the trial court has found that the appellant no longer desires to prosecute the appeal, ... the appellate court may consider the appeal without briefs, as justice may require"). Upon our review of the appellate record, we find no unassigned fundamental error.
We note, however, that the trial court's judgment states McHenry entered a plea of "true" to the allegations in the State's motion to adjudicate. This notation conflicts with the record of the adjudication hearing, which shows McHenry entered a plea of "not true." On our own motion, we may "reform the judgment to make the record speak the truth," even if the parties have not asked it to do so. See French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992); Hernandez v. State, No. 04-18-00265-CR, 2019 WL 2013861, at *1 (Tex. App.—San Antonio May 8, 2019, no pet.) (not designated for publication). Accordingly, we reform the judgment to reflect McHenry's plea of "not true" to the State's allegations. TEX. R. APP. P. 43.2(b); Woods v. State, 398 S.W.3d 396, 405-06 (Tex. App.—Texarkana 2013, pet. ref'd).
CONCLUSION
We affirm the trial court's judgment as modified.
PER CURIAM Do Not Publish