Opinion
NUMBER 13-14-00352-CRNUMBER 13-14-00353-CRNUMBER 13-14-00354-CR
03-12-2015
PATRICK TODD, Appellant, v. THE STATE OF TEXAS, Appellee.
On appeal from the 319th District Court of Nueces County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Longoria
Memorandum Opinion by Chief Justice Valdez
In 2011, appellant, Patrick Todd, pursuant to a plea agreement, pleaded guilty to aggravated assault (appellate cause number 13-14-00354-CR) and burglary of a habitation with the intent to commit assault (appellate cause number 13-14-00353-CR), both second-degree felonies. See TEX. PENAL CODE ANN. §§ 22.02, 30.02 (West, Westlaw 2013 through 3d C.S.). The trial court deferred adjudication and placed Todd on five years' community supervision. In 2013, the State filed a motion to revoke Todd's community supervision; the trial court continued Todd on community supervision. In 2014, the State indicted Todd for two counts of sexual assault of a child (appellate cause number 13-14-00352-CR). See id. § 22.011. In addition, the State filed a motion to revoke Todd's community supervision for the aggravated assault and burglary offenses. Todd pleaded "true" to the State's allegations that he violated the terms of his community supervision in each case and entered an open plea of guilty to the sexual assault of a child charges, the trial court revoked Todd's community supervision and adjudicated him guilty of the aggravated assault, burglary, and sexual assault of a child offenses. The trial court sentenced Todd to fifteen years' confinement on each charge with the sentences to run concurrently. These appeals followed. Todd's court-appointed counsel has filed an Anders brief, covering all three appeals. See Anders v. California, 386 U.S. 738, 744 (1967). We affirm the judgments in appellate cause numbers 13-14-00352-CR and 13-14-00354-CR, and we affirm as modified the judgment in appellate cause number 13-14-00353-CR.
I. ANDERS BRIEF
Pursuant to Anders v. California, Todd's court-appointed appellate counsel has filed a brief with this Court, stating that he "has diligently reviewed the entire record and concludes there is no reversible error." 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) ("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 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), Todd's counsel carefully discussed why, under controlling authority, there is no reversible error in the trial court's judgment. Counsel has informed this Court, in writing, that counsel has: (1) notified Todd that counsel has filed an Anders brief and a motion to withdraw; (2) provided Todd with a copy of the pleadings; (3) informed Todd of his rights to file a pro se response and to review the record preparatory to filing that response; and (4) provided Todd with a copy of the appellate record.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.
Because Todd's counsel has provided Todd with a copy of the entire appellate record, it was not necessary for him to provide Todd with a form motion for pro se access to the appellate record. See Gonzalez v. State, No. 13-13-00231-CR, 2014 WL 5314474, at *1 (Tex. App.—Corpus Christi Oct. 16, 2014, no pet.) (mem. op., not designated for publication).
More than a reasonable amount of time has elapsed since counsel certified in writing that he has provided appellant with a copy of the appellate record and motion to withdraw, and appellant has not filed a pro se response. The State has also not filed a brief.
II. INDEPENDENT REVIEW
Upon receiving an Anders brief, we must conduct a full examination of all the proceedings to determine whether the cases are wholly frivolous. Penson v. Ohio, 488 U.S. 75, 80 (1988). We have reviewed the entire record and counsel's brief, and we have found nothing that would arguably support an appeal in any of the causes. See Bledsoe v. State, 178 S.W.3d 824, 826-28 (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. There is no reversible error in the record. Accordingly, the judgments of the trial court in appellate cause numbers 13-14-00352-CR and 13-14-00354-CR are affirmed, and the judgment of the trial court in appellate cause number 13-14-00353-CR is affirmed as modified as explained below.
III. MODIFICATION
We note that the trial court's judgment adjudicating Todd of committing burglary of a habitation with intent to commit assault in appellate cause number 13-14-00353-CR recites that the statute is section "22.02" of the Texas Penal Code. See TEX. PENAL CODE ANN. § 22.02. However, section 22.02 is the statute for aggravated assault, whereas in this cause, Todd was indicted and pleaded guilty to burglary of a habitation with intent to commit assault under section 30.02. See id. § 30.02. The rules of appellate procedure provide that an appellate court may modify the trial court's judgment and affirm it as modified. TEX. R. APP. P. 43.2(b). When an appellate court has the necessary data and evidence before it for modification, the judgment and sentence may be modified on appeal. Banks v. State, 708 S.W.2d 460, 461 (Tex. Crim. App. 1986). Accordingly, we modify the judgment in appellate cause number 13-14-00353-CR to reflect the correct statute and affirm as modified.
IV. MOTION TO WITHDRAW
In accordance with Anders, Todd's attorney has asked this Court for permission to withdraw as counsel for appellant in all three appellate causes. 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.) ("[I]f an attorney believes the appeal is frivolous, he must withdraw from representing the appellant. To withdraw from representation, the appointed attorney must file a motion to withdraw accompanied by a brief showing the appellate court that the appeal is frivolous.") (citations omitted)). We grant counsel's motion to withdraw from all three causes. 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 judgments to Todd and to advise him of his right to file a petition for discretionary review in each cause. See TEX. R. APP. P. 48.4; see also In re Schulman, 252 S.W.3d at 412 n.35; Ex parte Owens, 206 S.W.3d 670, 673 (Tex. Crim. App. 2006).
No substitute counsel will be appointed. Should Todd wish to seek 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 memorandum opinion or the date when the Court overrules the last timely motion for rehearing or timely motion for en banc reconsideration. 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 id. 68.3. Any petition for discretionary review should comply with the requirements of Rule 68.4 of the Texas Rules of Appellate Procedure. See id. 68.4.
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/s/ Rogelio Valdez
ROGELIO VALDEZ
Chief Justice
Do not Publish.
TEX. R. APP. P. 47.2(b)
Delivered and filed the 12th day of March, 2015.