Opinion
NO. 03-17-00799-CR
05-08-2018
Ularn Smith, Appellant v. The State of Texas, Appellee
FROM THE COUNTY COURT AT LAW NO. 4 OF TRAVIS COUNTY, NO. D-1-DC-15-301169, THE HONORABLE MIKE DENTON, JUDGE PRESIDING MEMORANDUM OPINION
Appellant Ularn Smith was placed on community supervision after he pled guilty to the felony offense of family violence assault with a previous family violence assault conviction. See Tex. Penal Code § 22.01(a)(1), (b)(2)(A); Tex. Code Crim. Proc. art. 42A.053. Three months later, the trial court granted the State's motion to revoke after finding that appellant had violated the conditions of supervision. The court revoked appellant's community supervision and assessed his punishment at three years' confinement in the Texas Department of Criminal Justice. See Tex. Code Crim. Proc. arts. 42A.751, 42A.755; Tex. Penal Code § 12.32.
The State's motion to revoke contained five allegations concerning appellant's failure to pay various fees associated with his community supervision and one allegation regarding appellant having prohibited contact with the assault victim in this case. After appellant pled not true to all of the allegations, the State presented evidence as to the no contact violation. The trial court found that allegation to be true and the allegations relating to the failure to pay not true.
Appellant's court-appointed attorney has filed a motion to withdraw supported by a brief concluding that the appeal is frivolous and without merit. The brief meets the requirements of Anders v. California by presenting a professional evaluation of the record demonstrating why there are no arguable grounds to be advanced. See Anders v. California, 386 U.S. 738, 744 (1967); Garner v. State, 300 S.W.3d 763, 766 (Tex. Crim. App. 2009); see also Penson v. Ohio, 488 U.S. 75, 81-82 (1988).
Appellant's counsel has certified to this Court that he sent copies of the motion and brief to appellant, advised appellant of his right to examine the appellate record and file a pro se response, and provided a motion to assist appellant in obtaining the record. See Kelly v. State, 436 S.W.3d 313, 319-20 (Tex. Crim. App. 2014); see also Anders, 386 U.S. at 744. Appellant did not file a motion to obtain the record and, to date, has not filed a pro se response or requested an extension of time to file a response.
We have conducted an independent review of the record—including the record of the revocation proceedings and appellate counsel's brief—and find no reversible error. See Anders, 386 U.S. at 744; Garner, 300 S.W.3d at 766; Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005). We agree with counsel that the record presents no arguably meritorious grounds for review and the appeal is frivolous. Counsel's motion to withdraw is granted.
Appointed counsel certified to this Court that he advised appellant of his right to seek discretionary review pro se should this Court declare his appeal frivolous. In addition, appellant was informed of his right to file a pro se petition for discretionary review upon execution of the Trial Court's Certification of Defendant's Right of Appeal. Nevertheless, appointed counsel must comply with Rule 48.4 of the Texas Rules of Appellate Procedure, which mandates that counsel send appellant a copy of this Court's opinion and judgment along with notification of his right to file a pro se petition for discretionary review within five days after this opinion is handed down. See Tex. R. App. P. 48.4; see In re Schulman, 252 S.W.3d 403, 411 n.35 (Tex. Crim. App. 2008). The duty to send appellant a copy of this Court's decision is an informational one, not a representational one. See In re Schulman, 252 S.W.3d at 411 n.33. It is ministerial in nature, does not involve legal advice, and exists after this Court has granted counsel's motion to withdraw. See id.
On review of the record, however, we observe that the written judgment revoking community supervision in this case contains non-reversible clerical error. The judgment states that the "Statute for Offense" is "22.01(b)(2)(A) Penal Code." This statutory provision establishes that the offense of assault causing bodily injury is a third degree felony when committed against a person with whom the defendant has a relationship described by the Family Code, see Tex. Family Code §§ 71.0021(b) (defining dating relationship), 71.003 (defining family member), 71.005 (defining household member), and the defendant has a prior conviction for certain listed offenses, including family violence assault. This provision applies here as the assault for which appellant was convicted in this case is such an assault. However, the applicable statutory provisions for the offense for which appellant was convicted, and for which his community supervision was revoked, also include section 22.01(a)(1) of the Penal Code, the statutory provision that defines the offense of assault causing bodily injury.
This Court has authority to modify incorrect judgments when the necessary information is available to do so. See Tex. R. App. P. 43.2(b) (authorizing court of appeals to modify trial court's judgment and affirm it as modified); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993) (concluding that Texas Rules of Appellate Procedure empower courts of appeals to reform judgments). Accordingly, we modify the judgment revoking community supervision to reflect that the "Statute for Offense" is "22.01(a)(1), (b)(2)(A) Penal Code."
As so modified, the trial court's judgment revoking community supervision is affirmed.
/s/_________
Cindy Olson Bourland, Justice Before Justices Puryear, Pemberton, and Bourland Modified and, as Modified, Affirmed Filed: May 8, 2018 Do Not Publish