NUMBER 13-10-00199-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
ROBERTO CARLOS OLVERA, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 24th District Court
of Victoria County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Perkes
Memorandum Opinion by Justice Perkes
Appellant, Roberto Carlos Olvera, was charged by indictment with knowing and
unlawful possession of cocaine with intent to deliver. See TEX. HEALTH & SAFETY CODE
ANN. § 481.112(a), (d) (Vernon 2003). The offense was a first-degree felony because
the amount of cocaine was four grams or more, but less than two hundred grams. Id.
§ 481.112(d). Appellant pleaded guilty as charged. Following a bench trial on
punishment, the trial court orally sentenced appellant to fifteen years of incarceration in
the Texas Department of Criminal Justice, and ordered him to pay a $5,000 fine plus court
costs. The trial court‟s written judgment of conviction shows the fine as $2,000.
Appellant filed a timely notice of appeal, and as discussed below, his court-appointed
counsel filed an Anders brief.
We reform the trial court‟s judgment of conviction to show the $5,000 fine, and as
reformed, we affirm the trial court‟s judgment.
I. ANDERS BRIEF
Pursuant to Anders v. California, 386 U.S. 738, 744 (1967), appellant‟s
court-appointed appellate counsel has 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).
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,
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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, and
(3) informed appellant of his right to review the record and to file a pro se response.1 See
Anders, 386 U.S. at 744; 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. 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 (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,
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 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.
But, there is an error in the judgment. As appellate counsel pointed out in his
brief, there is a variance between the trial court‟s oral pronouncement of sentence and its
written judgment. In open court, the trial court imposed a $5,000 fine as part of
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.)).
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appellant‟s sentence, but the judgment shows a $2,000 fine. When there is a variance
between the oral pronouncement of sentence and the written memorialization of the
sentence, the oral pronouncement controls. Coffey v. State, 979 S.W.2d 326, 328 (Tex.
Crim. App. 1998). An intermediate appellate court may reform a trial court‟s judgment to
make the record speak the truth when it has the necessary data and information to do so.
TEX. R. APP. P. 43.2(b); see, e.g., Tamez v. State, 620 S.W.2d 586, 590 (Tex. Crim. App.
[Panel Op.] 1981) (reforming judgment to show $500 fine imposed but not stated in
judgment); Nolan v. State, 39 S.W.3d 697, 698 (Tex. App.—Houston [1st Dist. 2001, no
pet.) (reforming judgment to reflect longer sentence). Similar errors have been corrected
in other Anders cases. See, e.g., Brasfield v. State, No. 13-08-00699-CR, 2009 WL
2929275, at *2 (Tex. App.—Corpus Christi Aug. 25, 2009, no pet.) (mem. op., not
designated for publication) (deleting a fine from the judgment).
Accordingly, we reform the judgment of conviction to delete the $2,000 fine and to
show the correct $5,000 fine. As reformed, the judgment of the trial court is affirmed.
III. MOTION TO WITHDRAW
In accordance with Anders, appellant‟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.) (noting that “[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
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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 Court‟s opinion and judgment to appellant and to
advise him of his right to file a petition for discretionary review. 2 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).
______________________
GREGORY T. PERKES
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the 3rd
day of February, 2011.
2
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 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 that
was overruled by this Court. See TEX. R. APP. P. 68.2. Any petition for discretionary review must be filed
with this Court, after which it will be forwarded to the Texas Court of Criminal Appeals. See TEX. R. APP. P.
68.3, 68.7. Any petition for discretionary review should comply with the requirements of Texas Rule of
Appellate Procedure 68.4. See TEX. R. APP. P. 68.4.
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