Opinion
05-22-01306-CR
01-24-2024
DIJOURIAN IRBY, Appellant v. THE STATE OF TEXAS, Appellee
Do Not Publish Tex.R.App.P. 47.2(b)
On Appeal from the 291st Judicial District Court Dallas County, Texas Trial Court Cause No. F17-24422-U.
Before Partida-Kipness, Pedersen, III, and Garcia, Justices.
MEMORANDUM OPINION
DENNISE GARCIA, JUSTICE.
Appellant pleaded guilty to retaliation. In accordance with the plea, the court deferred a finding of guilt and placed appellant on community supervision for five years.
The State subsequently filed a motion to revoke community supervision. The trial court found the allegations true, revoked appellant's community supervision, adjudicated him guilty of the original offense and assessed punishment at ten years in prison.
On appeal, appellant's counsel has filed a brief in which he concludes the appeal is frivolous and without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738 (1967). The brief presents a professional evaluation of the record showing why, in effect, there are no arguable grounds to advance. See High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. [Panel Op.] 1978) (determining whether brief meets requirements of Anders). Counsel delivered a copy of the brief to appellant. We advised appellant of his right to file a pro se response, but he did not file a pro se response. See Kelly v. State, 436 S.W.3d 313, 319-21 (Tex. Crim. App. 2014) (noting appellant has right to file pro se response to Anders brief filed by counsel).
Although not an arguable issue on the merits, the State notes a ministerial error in the trial court's judgment and asks that we modify the judgment to correct the error. Specifically, the judgment fails to assess court costs reflected in the bill of costs. A judgment imposing any punishment other than a fine must adjudge the costs against the defendant. Tex. Code Crim. Proc. Ann. art. 42.16; See Coronel v. State, 416 S.W.3d 550, 555-56 (Tex. App.-Dallas 2013 pet. ref'd).
We may correct and modify the judgment of a trial court to make the record speak the truth when we have the necessary data and information to do so. See Ray v. State, No. 05-17-00820, 2018 WL 1149421, at *2 (Tex. App.-Dallas Mar. 5, 2018, no pet.) (mem. op., not designated for publication) (modifying judgment in Anders appeal); Davis v. State, No. 01-02-00404-CR, 2003 WL 139655, at *1 (Tex. App.-Houston [1st Dist.] Jan. 9, 2003, no pet.) (mem. op., not designated for publication) (same). The record supports the requested modification. Accordingly, we modify the judgment to include the $372.90 reflected in the bill of costs. Tex.R.App.P. 43.2(b).
As required, appellant's counsel has moved for leave to withdraw and has provided appellant with a copy of the motion. See In re Schulman, 252 S.W.3d 403, 407 (Tex. Crim. App. 2008) (orig. proceeding). We carried the motion for consideration with the merits.
Having modified the judgment to correct the ministerial error the State identified, and having reviewed the record, we agree with counsel that this appeal is wholly frivolous and without merit; we find nothing in the record before us that arguably might 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). Accordingly, we grant counsel's motion to withdraw, and affirm the trial court's judgment as modified. See Tex. R. App. P. 43.2(a), (b).
JUDGMENT
Based on the Court's opinion of this date, the judgment of the trial court is MODIFIED to assess court costs of $372.90. As REFORMED, the judgment is AFFIRMED.