Opinion
No. 01-08-00823-CR
Opinion issued June 18, 2009. DO NOT PUBLISH. Tex. R. App. P. 47.2(b).
On Appeal from the 209th District Court, Harris County, Texas, Trial Court Cause No. 1134893.
Panel consists of Justices JENNINGS, KEYES, and HIGLEY.
MEMORANDUM OPINION
Appellant, Graceandra Cornett, without an agreed recommendation from the State, pleaded guilty to the second degree felony offense of aggregate theft in an amount over one hundred thousand dollars and under two hundred thousand dollars. Appellant also pleaded true to one enhancement paragraph alleging that she had previously been convicted of committing a felony offense, raising the punishment range to that of a first degree felony. Following a pre-sentence investigation hearing, the trial court found appellant guilty and assessed her punishment at confinement for 20 years. We affirm. Appellant's counsel on appeal has filed a brief stating that the record presents no reversible error, that the appeal is without merit and is frivolous, and that the appeal must be dismissed or affirmed. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, (1967). The brief meets the requirements of Anders by presenting a professional evaluation of the record and detailing why there are no arguable grounds for reversal. Id. at 744, 87 S.Ct. at 1400; see also High v. State, 573 S.W.2d 807, 810 (Tex.Crim.App. 1978). Counsel represents that he has served a copy of the brief on appellant. Counsel also advised appellant of her right to examine the appellate record and file a pro se brief. See Stafford v. State, 813 S.W.2d 503, 510 (Tex.Crim.App. 1991). More than 30 days have passed, and appellant has not filed a pro se brief. Having reviewed the record and counsel's brief, we agree that the appeal is frivolous and without merit and that there is no reversible error. See Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex.Crim.App. 2005). We note that the trial court's judgment reflects that appellant was convicted of the offense of credit/debit card abuse when the indictment was for theft of money in an aggregate amount. The judgment reflects the degree of the offense as 2nd degree felony with a line marking through it and a hand written notation "state jail felony." The judgment correctly reflects that appellant pleaded true to the allegation in one enhancement paragraph and that the trial court found the enhancement to be true. Appellant's counsel has not requested that the judgment be reformed to reflect that appellant was convicted of the offense of theft as alleged in the indictment. Counsel has also not addressed the judgment's incorrect recitation of the range of punishment. We note that the clerk's record (CR 439) reflects that appellant signed, along with her written waiver of constitutional rights, agreement to stipulate, and judicial confession, a document styled "waivers and admonishments." Appellant initialed sections in the waivers and admonishment document that included among other things the following statements: You are charged with the felony of aggregate theft over $100,000. If you are convicted, you face the following range of punishment:
Second Degree Felony: imprisonment for any term of not more than 2 years in the Institutional Division of the Texas Department of Criminal Justice and in addition, a fine not to exceed $10,000 may be assessed; if enhanced with one prior felony conviction, a term of imprisonment for life or any term of not more than 99 years or less than 5 years in the Institutional Division of the Texas Department of Criminal Justice, and in addition, a fine not to exceed $10,000 may be assessed.An appellate court has the power to correct and reform a trial court judgment to make the record speak the truth when it has the necessary data and information to do so. Nolan v. State, 39 SS.W.3d 697, 698 (Tex.App.-Houston [1st Dist.] 2001, no pet.) (Citing Asberry v. State, 813 S.W. 2d 526, 529 (Tex.App.-Dallas 1991, pet. ref'd); see also Tex. R. App. P. 43.2 (b). The record supports modification of the judgment because the indictment properly alleged an offense under section 31.01 of the Texas Penal Code, and appellant stipulated to the allegations contained in the indictment, including the enhancement allegation. See Tex. Pen. Code Ann. § 31.03 (a) and Tex. Pen. Code Ann. § 31.03 (e)(6) (Vernon Supp. 2008). Accordingly, we reform the trial court's judgment to reflect that appellant was convicted of the offense of aggregate theft with a value of over one hundred thousand dollars and under two hundred thousand dollars. We affirm the judgment of the trial court as reformed and grant counsel's motion to withdraw. Attorney Scott Ramsey must immediately send the notice required by Texas Rule of Appellate Procedure 6.5(c) and file a copy of that notice with the Clerk of this Court. We deny pending motions as moot.
Graceandra Cornett is also known as Garceandra Cornett.
See Tex. Pen. Code Ann. § 31.03 (e) (6) (Vernon Supp. 2008). See Tex. Pen. Code Ann. § 31.09 (Vernon Supp. 2008).
See Tex. Pen. Code Ann. § 12.42 (b) (Vernon Supp. 2008).
Appellant stipulated that "The charges against me allege that in Harris County, Texas, Graceandra Cornett, hereafter styled the Defendant, heretofore on or about January 1, 2007, did then and there unlawfully, intentionally and knowingly, pursuant to one scheme and continuing course of conduct, appropriate by acquiring and otherwise exercising control over property, to wit: MONEY, owned by David McDermott and the Home Depot, hereafter referred to as the Complainant, of the value of over one hundred thousand dollars, with the intent to deprive the Complainant of the property.
Before the commission of the offense alleged above, on August 24, 2006, in Cause No. 823064, in the 178th District Court of Harris County, Texas, the Defendant was convicted of the felony offense of Possession with Intent to deliver a controlled Substance, namely cocaine weighing more than 4 grams and less than 200 grams."
Appointed counsel still has a duty to inform appellant of the result of this appeal and that he may, on his own, pursue discretionary review in the Texas Court of Criminal Appeals. See Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex.Crim.App. 2005).