Opinion
NO. 02-15-00230-CR
04-28-2016
ABDIFATAH ABSHIR FARAH APPELLANT v. THE STATE OF TEXAS STATE
FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY
TRIAL COURT NO. 1316808D MEMORANDUM OPINION
In November 2013, the trial court placed Appellant Abdifatah Abshir Farah on eight years' deferred adjudication community supervision upon his plea of guilty to the offense of aggravated assault with a deadly weapon. In January 2015, the State filed a petition to proceed to adjudication, alleging that Farah had violated several terms and conditions of his community supervision. At a hearing on the State's petition, Farah pleaded true to the State's allegations, and the trial court sentenced him to five years' confinement in the Institutional Division of the Texas Department of Criminal Justice (IDTDCJ).
Farah's court-appointed appellate counsel has filed a motion to withdraw and a brief in support of that motion. Counsel avers that in his professional opinion, the appeal is frivolous. Counsel's brief and motion meet the requirements of Anders v. California by presenting a professional evaluation of the record and demonstrating why there are no arguable grounds for relief. See 386 U.S. 738, 87 S. Ct. 1396 (1967). In compliance with Kelly v. State, counsel notified Farah of his motion to withdraw, provided him a copy of the motion and brief, informed him of his right to file a pro se response, informed him of his right to seek discretionary review should this court hold the appeal is frivolous, and took concrete measures to facilitate Farah's review of the appellate record. See 436 S.W.3d 313, 319 (Tex. Crim. App. 2014). This court informed Farah that he may file a pro se brief, but he did not do so. The State did not submit a brief.
Once an appellant's court-appointed attorney files a motion to withdraw on the ground that the appeal is frivolous and fulfills the requirements of Anders, this court is obligated to undertake an independent examination of the record. See Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991); Mays v. State, 904 S.W.2d 920, 922-23 (Tex. App.—Fort Worth 1995, no pet.). Only then may we grant counsel's motion to withdraw. See Penson v. Ohio, 488 U.S. 75, 82-83, 109 S. Ct. 346, 351 (1988).
We have carefully reviewed the record and counsel's brief, and we agree with counsel that this appeal is wholly frivolous and without merit; we find nothing in the record that might arguably support the appeal. See Bledsoe v. State, 178 S.W.3d 824, 827-28 (Tex. Crim. App. 2005); see also Meza v. State, 206 S.W.3d 684, 685 n.6 (Tex. Crim. App. 2006). We grant counsel's motion to withdraw.
We note, however, that the judgment adjudicating Farah's guilt contains two clerical errors. See Lumpkins v. State, No. 03-10-00702-CR, 2011 WL 6938517, at *1 (Tex. App.—Austin Dec. 29, 2011, no pet.) (mem. op., not designated for publication) (correcting clerical errors contained in judgments before affirming conviction in frivolous appeal under Anders). On page 1, a box is selected that states, "SENTENCE OF CONFINEMENT SUSPENDED, DEFENDANT PLACED ON COMMUNITY SUPERVISION FOR 8 YEARS." And on page 2, a box is selected that states, "The Court ORDERS Defendant's sentence of confinement SUSPENDED. The Court ORDERS Defendant placed on community supervision for the adjudged period (above) . . . ." The record is clear that the trial court revoked Farah's deferred adjudication community supervision and sentenced him to five years' confinement in the IDTDCJ. It did not additionally suspend imposition of that five-year sentence and place Farah on straight community supervision for eight years. We modify the judgment adjudicating Farah's guilt to reflect (1) that the two boxes indicating that Farah's sentence of confinement is suspended are not selected and (2) that the box next to the statement "The Court ORDERS Defendant's sentence EXECUTED" is selected.
We affirm the trial court's judgment as modified.
/s/ Bill Meier
BILL MEIER
JUSTICE PANEL: MEIER, GABRIEL, and SUDDERTH, JJ. DO NOT PUBLISH
Tex. R. App. P. 47.2(b) DELIVERED: April 28, 2016
See Tex. R. App. P. 47.4.