NUMBER 13-14-00247-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
SYLVIA ANN MARTINEZ, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 156th District Court
of Bee County, Texas.
MEMORANDUM OPINION
Before Justices Benavides, Perkes, and Longoria
Memorandum Opinion by Justice Benavides
A Bee County grand jury indicted appellant Sylvia Ann Martinez for injury to a
child, a state jail felony. See TEX. PENAL CODE ANN. § 22.04(a)(3) (West, Westlaw
through 2013 3d C.S.). On October 17, 2011, Martinez pleaded nolo contendere to a
lesser offense of assault—family violence, a Class A misdemeanor. See id. § 22.01
(West, Westlaw through 2013 3d C.S.). That same day, the trial court sentenced
Martinez to one year in the Bee County Jail, suspended and probated for two years,
assessed a fine of $750, and placed Martinez under twenty-four conditions of community
supervision.
On June 12, 2012, the State filed a motion to revoke Martinez’s community
supervision alleging among other things that Martinez was under the influence of alcohol
in a public place, failed to report an arrest for disorderly conduct, and failed to pay fines
and court costs. The trial court continued Martinez’s community supervision and
amended Martinez’s conditions of community supervision to include, inter alia,
participation in: a substance abuse treatment program, alcoholics or narcotics
anonymous, an anger management program, and a moral reconation therapy program.
On October 30, 2012, the State filed a second motion to revoke Martinez’s
community supervision on various grounds, including that she: failed to report a
September 15, 2012 arrest, failed to successfully complete a substance abuse treatment
program, and consumed alcohol. On April 16, 2013, the trial court continued Martinez’s
community supervision and among other conditions, ordered her to participate in: an
outpatient substance abuse treatment program three times per week, an outpatient
psychiatric treatment program, and an outpatient anger management program.
On December 3, 2013, the State filed a third motion to revoke Martinez’s
community supervision and alleged eight violations of the terms of her community
supervision, including: (1) intentionally and knowingly withdrawing from the substance
abuse treatment program without the trial court’s release; (2) intentionally and knowingly
failing to report in person to the supervision officer of Bee County; (3) intentionally and
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knowingly failing to complete the anger management program; (4) intentionally and
knowingly failing to attend alcoholics anonymous meetings; and (5) intentionally and
knowingly failing to submit to a random urinalysis.1 On April 1, 2014, the trial court held
a hearing on the revocation motion, and Martinez pled “true” to all of the State’s
allegations supporting revocation. At the hearing, the trial court orally pronounced that
Martinez “violated the terms and conditions of [her] probation,” revoked her community
supervision, and sentenced her to one year imprisonment in the Bee County Jail. This
appeal followed. Martinez’s court-appointment counsel has filed an Anders brief. See
Anders v. California, 386 U.S. 738, 744 (1967). We affirm as modified.
I. ANDERS BRIEF
Pursuant to Anders v. California, Martinez’s court-appointed appellate counsel
has filed a brief and a motion to withdraw with this Court, stating that her review of the
record yielded no grounds of error upon which an appeal can be predicated. See id.
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).
In compliance with High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel
1 Other violations included Martinez’s failure to pay various fees, fines, and court costs.
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Op.] 1978) and Kelly v. State, 436 S.W.3d 313, 319–22 (Tex. Crim. App. 2014),
Martinez’s counsel carefully discussed why, under controlling authority, there is no
reversible error in the trial court's judgment. Martinez’s counsel has also ensured that
Martinez has been (1) notified that counsel has filed an Anders brief and a motion to
withdraw; (2) provided with copies of both pleadings; (3) informed of her rights to file a
pro se response, 2 review the record preparatory to filing that response, and seek
discretionary review if we conclude that the appeal is frivolous; and (4) provided with a
form motion for pro se access to the appellate record, lacking only Martinez’s signature
and the date and including the mailing address of this Court, with instructions to file the
motion within ten days. See Anders, 386 U.S. at 744; Kelly, 436 S.W.3d at 319–20,
Stafford, 813 S.W.2d at 510 n.3; see also In re Schulman, 252 S.W.3d at 409 n.23.
Martinez has filed neither a timely motion seeking pro se access to the appellate
record nor a motion for extension of time to do so. No pro se brief was filed.
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 (1988). We have reviewed the entire record and counsel’s brief, and we
have found nothing that would arguably support an appeal. See Bledsoe v. State, 178
S.W.3d 824, 826–28 (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
2 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.)).
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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. There is no
reversible error in the record.
Despite concluding that there is no reversible error in the judgment, counsel
requests that we modify the trial court’s judgment on three grounds: (1) correcting the
amount owed on Martinez’s fine to $740.00; (2) correcting the portion of the judgment
discussing credit for time served; and (3) adding the findings made by the trial court
regarding Martinez’s community supervision violations. We have the power to modify
incorrect judgments when the necessary data and information is available to do so.
See TEX. R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27–28 (Tex. Crim. App.
1993) (en banc).
First, we agree with Martinez’s counsel that the record shows that the trial court
imposed the same $750.00 fine in its judgment revoking Martinez’s community
supervision as it did in the original judgment. The record shows, however, that during
her community supervision, Martinez had paid a total of $184.00 toward various fees,
costs, and her fine. Of the $184.00 paid, $10.00 was remitted to her $750.00 fine.
Therefore, Martinez’s fine should be corrected to reflect her $10.00 payment and be
modified to $740.00. Next, counsel notes that Martinez accrued a total of 81 days of jail
credit for time served at the Bee County Jail. This credit, while noted in the trial court’s
judgment, was erroneously identified as credit for time served in the Texas Department
of Criminal Justice’s Institutional Division rather than in the Bee County Jail. As such,
we conclude that the judgment should be modified to appropriately identify Martinez’s
credit as time served in the Bee County Jail rather than in the Texas Department of
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Criminal Justice’s Institutional Division. Finally, counsel requests that we modify the
trial court’s judgment to state which conditions of community supervision the trial court
found that Martinez violated. While the record is clear that Martinez pled “true” to all
eight of the State’s allegations, the trial court’s oral pronouncement was not specific as to
which allegations it found that Martinez violated. Instead, the trial court found that
Martinez “violated the terms and conditions of [her] probation,” without any more
specificity as to which violations it found. Because our power to modify judgments is
available only when “the necessary data and information is available to do so,” see
Bigley, 865 S.W.2d at 27–28, and we do not have the necessary information available to
modify this portion of Martinez’s judgment, we decline to do so. Accordingly, the trial
court’s judgment revoking community supervision is affirmed as modified.
III. MOTION TO WITHDRAW
In accordance with Anders, Martinez’s attorney has asked this Court for
permission to withdraw as counsel for appellant. See Anders, 386 U.S. at 744; 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.) (“[I]f 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 Martinez and to
advise her of her right to file a petition for discretionary review. 3 See TEX. R. APP. P.
3 No substitute counsel will be appointed. Should appellant wish to seek further review of this
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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).
/s/ Gina M. Benavides
GINA M. BENAVIDES,
Justice
Do not publish.
TEX. R. APP. P. 47.2 (b).
Delivered and filed the
26th day of February, 2015.
case by the Texas Court of Criminal Appeals, he must either retain an attorney to file a petition for
discretionary review or file a pro se petition for discretionary review. Any petition for discretionary review
must be filed within thirty days from the date of either this opinion or the last timely motion for rehearing or
timely motion for en banc reconsideration that was overruled by this Court. See TEX. R. APP. P. 68.2.
Any petition for discretionary review must be filed with the clerk of the Court of Criminal Appeals, see TEX.
R. APP. P. 68.3, and should comply with the requirements of Texas Rule of Appellate Procedure 68.4.
See TEX. R. APP. P. 68.4.
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