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St. Marie v. State

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
Nov 30, 2017
NO. 03-17-00095-CR (Tex. App. Nov. 30, 2017)

Opinion

NO. 03-17-00095-CR

11-30-2017

Roger J St. Marie, Appellant v. The State of Texas, Appellee


FROM THE DISTRICT COURT OF HAYS COUNTY, 207TH JUDICIAL DISTRICT
NO. CR-15-0723 , THE HONORABLE JACK H. ROBISON, JUDGE PRESIDING MEMORANDUM OPINION

Appellant Roger J St. Marie was convicted by a jury of two counts of sexual assault, a second degree felony, see Tex. Penal Code §§ 22.01(a)(1)(A), (f), and one count of stalking, a third degree felony, see id. 42.072(a), (b). The jury assessed appellant's punishment at confinement in the Texas Department of Criminal Justice for three years for each of the three offenses, see id. §§ 12.33, 12.34, and the trial court ordered the sentences to be served concurrently, see id. § 3.03(a).

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. To date, appellant 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 trial proceedings below 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. The trial court's judgments of conviction for sexual assault in Counts I and II are affirmed.

On review of the record, however, we observe that the written judgment of conviction for stalking in Count III contains non-reversible clerical errors. First, at the top of the judgment, the judgment reflects that the conviction is for "Count I." However, the stalking offense appellant was convicted of was charged in Count III of the indictment. Second, the judgment states that the "Statute for Offense" is "42.072(b) Penal Code." This statutory provision establishes that the offense of stalking, as alleged in this case, is a third degree felony. However, the applicable statutory provisions for the offense also include section 42.072(a) of the Penal Code, which sets forth the offense. This Court has authority to modify incorrect judgments when the necessary information is available to do so. See Tex. R. App. P. 46.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993). Accordingly, we modify the judgment of conviction for stalking to reflect that it is for "Count III" and that the "Statute for Offense" is "42.072(a), (b) Penal Code." As so modified, the trial court's judgment of conviction for stalking in Count III is affirmed.

/s/_________

Melissa Goodwin, Justice Before Chief Justice Rose, Justices Pemberton and Goodwin Count I: Affirmed Count II: Affirmed Count III: Modified and, as Modified, Affirmed Filed: November 30, 2017 Do Not Publish


Summaries of

St. Marie v. State

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
Nov 30, 2017
NO. 03-17-00095-CR (Tex. App. Nov. 30, 2017)
Case details for

St. Marie v. State

Case Details

Full title:Roger J St. Marie, Appellant v. The State of Texas, Appellee

Court:TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

Date published: Nov 30, 2017

Citations

NO. 03-17-00095-CR (Tex. App. Nov. 30, 2017)