RUBEN FELAN JR v. THE STATE OF TEXAS

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Court of Appeals of Texas, Waco.

RUBEN FELAN, JR., Appellant v. THE STATE OF TEXAS, Appellee

No. 10-17-00121-CR

Decided: September 20, 2017

Before Chief Justice Gray, Justice Davis, and Justice Scoggins

MEMORANDUM OPINION

Appellant, Ruben Felan Jr., was charged by indictment with delivery of a controlled substance in an amount less than one gram in a drug-free zone. See TEX. HEALTH & SAFETY CODE ANN. § 481.112(b) (West 2017). Pursuant to a plea agreement with the State, appellant pleaded guilty to the charged offense. The trial court accepted appellant's guilty plea, found appellant guilty, sentenced him to five years' incarceration in the Institutional Division of the Texas Department of Criminal Justice with a $1,000 fine, suspended the sentence, and placed appellant on community supervision for five years.

Thereafter, the State filed motions to revoke appellant's community supervision, alleging numerous violations of the terms and conditions of his community supervision. At the hearing on the State's amended motion to revoke, appellant pleaded “true” to the State's allegations. The trial court accepted appellant's plea of “true,” revoked appellant's community supervision, and assessed punishment at five years' incarceration in the Institutional Division of the Texas Department of Criminal Justice. The trial court also certified appellant's right to appeal the revocation of his community supervision. This appeal followed.

I. ANDERS BRIEF

Pursuant to Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1396, 1400, 18 L. Ed. 2d 493 (1967), appellant's court-appointed appellate counsel filed a brief and a motion to withdraw with this Court, stating that his review of the record yielded no grounds of error upon which an appeal can be predicated. Counsel's brief meets the requirements of Anders as it presents a professional evaluation demonstrating why there are no arguable grounds to advance on appeal. See In re Schulman, 252 S.W.3d 403, 407 n.9 (Tex. Crim. App. 2008) (“In Texas, an Anders brief need not specifically advance ‘arguable’ points of error if counsel finds none, but it must provide record references to the facts and procedural history and set out pertinent legal authorities.”) (citing Hawkins v. State, 112 S.W.3d 340, 343-44 (Tex. App.—Corpus Christi 2003, no pet.)); Stafford v. State, 813 S.W.2d 503, 510 n.3 (Tex. Crim. App. 1991) (en banc).

In compliance with High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel Op.] 1978), appellant's counsel has carefully discussed why, under controlling authority, there are no reversible errors in the trial court's judgment. Counsel has informed this Court that he has: (1) examined the record and found no arguable grounds to advance on appeal; (2) served a copy of the brief and counsel's motion to withdraw on appellant; (3) provided appellant with a “Motion for Pro Se Access to the Appellate Record,” lacking only appellant's signature and the date, and the mailing address for this Court; and (4) informed him of his right to file a pro se response.1 See Anders, 386 U.S. at 744, 87 S. Ct. at 1400; Stafford, 813 S.W.2d at 510 n.3; see also In re Schulman, 252 S.W.3d at 409 n.23. More than an adequate period of time has passed, and appellant has not filed a pro se response.2 See In re Schulman, 252 S.W.3d at 409.

II. INDEPENDENT REVIEW

Upon receiving an Anders brief, we must conduct a full examination of all the proceedings to determine whether the case is wholly frivolous. Penson v. Ohio, 488 U.S. 75, 80, 109 S. Ct. 346, 349-50, 102 L. Ed. 2d 300 (1988). We have reviewed the entire record and counsel's brief and have found nothing that would arguably support an appeal. See Bledsoe v. State, 178 S.W.3d 824, 827-28 (Tex. Crim. App. 2005) (“Due to the nature of Anders briefs, by indicating in the opinion that it considered the issues raised in the briefs and reviewed the record for reversible error but found none, the court of appeals met the requirement of Texas Rule of Appellate Procedure 47.1.”); Stafford, 813 S.W.2d at 509. Accordingly, we affirm the judgment of the trial court as modified.3

III. MOTION TO WITHDRAW

In accordance with Anders, appellant's attorney has asked this Court for permission to withdraw as counsel in this case. See Anders, 386 U.S. at 744, 87 S. Ct. at 1400; see also In re Schulman, 252 S.W.3d at 408 n.17 (citing Jeffery v. State, 903 S.W.2d 776, 779-80 (Tex. App.—Dallas 1995, no pet.) (“If an attorney believes the appeal is frivolous, he must withdraw from representing the appellant. To withdraw from representation, the appointed attorney must file a motion to withdraw accompanied by a brief showing the appellate court that the appeal is frivolous.”) (citations omitted)). We grant counsel's motion to withdraw. Within five days of the date of this Court's opinion, counsel is ordered to send a copy of this opinion and this Court's judgment to appellant and to advise him of his right to file a petition for discretionary review.4 See TEX. R. APP. P. 48.4; see also In re Schulman, 252 S.W.3d at 412 n.35; Ex parte Owens, 206 S.W.3d 670, 673 (Tex. Crim. App. 2006).

Affirmed as modified

[CR25]

FOOTNOTES

1.   The Texas Court of Criminal Appeals has held that “ ‘the pro se response need not comply with the rules of appellate procedure in order to be considered. Rather, the response should identify for the court those issues which the indigent appellant believes the court should consider in deciding whether the case presents any meritorious issues.’ ” In re Schulman, 252 S.W.3d 403, 409 n.23 (Tex. Crim. App. 2008) (quoting Wilson v. State, 955 S.W.2d 693, 696-97 (Tex. App.—Waco 1997, no pet.)).

2.   In his motion to withdraw, appellate counsel noted that he: “explained the process for obtaining the appellate record, provided a Motion for Pro Se Access to the Appellate Record lacking only appellant's signature and the date, and provided the mailing address for this Court.” Based on these assertions, we have fair assurance that appellant has had a sufficient opportunity to review the record to assist in filing a pro se response, though no request for the record or response has been filed. See Kelly v. State, 436 S.W.3d 313, 321-22 (Tex. Crim. App. 2014).

3.   The judgment reflects that the operative statute in this case is section 481.112(b) of the Penal Code—a non-existent statute. We modify the judgment to reflect the appropriate statute pertaining to the charged offense—section 481.112(b) of the Texas Health and Safety Code. See TEX. HEALTH & SAFETY CODE ANN. § 481.112(b) (West 2017); TEX. R. APP. P. 43.2(b); Pfeiffer v. State, 363 S.W.3d 594, 599 (Tex. Crim. App. 2012) (stating that “when a defendant appeals his conviction, the courts of appeals have the jurisdiction to address any error in that case”); Ferguson v. State, 435 S.W.3d 291, 293-94 (Tex. App.—Waco 2014, pet. dism'd) (noting that appellate courts have the authority to reform judgments and affirm as modified in cases where there is non-reversible error); see also Romero v. State, No. 13-13-00270-CR, 2013 Tex. App. LEXIS 15198, at *5 (Tex. App.—Corpus Christi Dec. 19, 2013, no pet.) (mem. op., not designated for publication) (“Appellate courts may modify the trial court's judgment to make the record speak the truth when we have the necessary information to do so, even in cases where appellant's counsel files an Anders brief.”).

4.   No substitute counsel will be appointed. Should appellant wish to seek further review of this case by the Texas Court of Criminal Appeals, he must either retain an attorney to file a petition for discretionary review or must file a pro se petition for discretionary review. Any petition for discretionary review must be filed within thirty days from the date of this opinion or the last timely motion for rehearing or timely motion for en banc reconsideration was overruled by this Court. See TEX. R. APP . P. 68.2. Any petition and all copies of the petition for discretionary review must be filed with the Clerk of the Court of Criminal Appeals. See id. at R. 68.3. Any petition for discretionary review should comply with the requirements of rule 68.4 of the Texas Rules of Appellate Procedure. See id. at R. 68.4; see also In re Schulman, 252 S.W.3d at 409 n.22.

AL SCOGGINS Justice