James T. Campbell Justice

On Appeal from the 251st District Court Potter County, Texas
Trial Court No. 71,334-C, Honorable Ana Estevez, Presiding

MEMORANDUM OPINION

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

Appellant Orlando Tenorio appeals from his conviction by jury of the third degree felony offense of evading arrest or detention with a vehicle and the resulting sentence of twenty-five years of imprisonment. Appellant's attorney has filed a motion to withdraw and a brief pursuant to Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967) and In re Schulman, 252 S.W.3d 403 (Tex. Crim. App. 2008). Agreeing with appointed counsel's conclusion the record fails to show any arguably meritorious issue that could support the appeal, we will affirm the conviction and sentence.

In support of his motion to withdraw, counsel certifies he has diligently reviewed the record and, in his opinion, the record reflects no reversible error upon which an appeal can be predicated. Anders, 386 U.S. at 744-45. In compliance with High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel Op.] 1978), counsel has discussed why, under the controlling authorities, there is no error in the trial court's judgment. Additionally, counsel has certified that he has provided appellant a copy of the Anders brief and motion to withdraw and advised appellant of his right to file a pro se response in this matter. Stafford v. State, 813 S.W.2d 503, 510 (Tex. Crim. App. 1991) (en banc). Counsel further has certified that he has provided appellant with copies of the clerk's record and the reporter's record. See Kelly v. State, 436 S.W.3d 313, 319-20 (Tex. Crim. App. 2014). The Court also has advised appellant of his right to file a pro se response. Appellant has filed no response.

By his Anders brief, counsel raises grounds that could possibly support an appeal, but concludes the appeal is frivolous. We have reviewed these grounds and made an independent review of the entire record to determine whether there are any arguable grounds which might support an appeal. See Penson v. Ohio, 488 U.S. 75, 82-83, 109 S. Ct. 346, 102 L. Ed. 2d 300 (1988); Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005). We have found no such arguable grounds and agree with counsel that the appeal is frivolous.

Our review of the record, however, reveals an error in the trial court's nunc pro tunc judgment of conviction signed October 7, 2016. The judgment states appellant elected to have the jury assess punishment, and that the jury did so. It is clear from the appellate record that appellant did not file a written election as to whether the judge or jury should assess punishment, and that the court assessed punishment. This Court has the power to modify the judgment of the court below to make the record speak the truth when we have the necessary information to do so. Ramirez v. State, 336 S.W.3d 846, 852 (Tex. App.—Amarillo 2011, pet. ref'd) (citing TEX. R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993)). Appellate courts have the "power to reform whatever the trial court could have corrected by a judgment nunc pro tunc where the evidence necessary to correct the judgment appears in the record." Ramirez, 336 S.W.3d at 852 (citing Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.—Dallas 1991, pet. ref'd)). The power to reform a judgment is "not dependent upon the request of any party, nor does it turn on the question of whether a party has or has not objected in the trial court." Id. (citing Asberry, 813 S.W.2d at 529-30). Accordingly, we modify the trial court's judgment to reflect that the trial court, not the jury, assessed punishment against appellant after receiving evidence on the question of punishment.

Counsel's motion to withdraw is granted, and the trial court's nunc pro tunc judgment, as modified, is affirmed.

James T. Campbell

Justice Do not publish.