Opinion
NUMBER 13-17-00220-CR
02-08-2018
WILLIAM PHILLIPS, Appellant, v. THE STATE OF TEXAS, Appellee.
On appeal from the County Court at Law No. 8 of Travis County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Contreras and Benavides
Memorandum Opinion by Justice Benavides
The State charged appellant William Phillips by information of driving while intoxicated (DWI) as a second offense, a Class A misdemeanor. See TEX. PENAL CODE ANN. §§ 49.04(a) (West, Westlaw through 2017 1st C.S.); 49.09(a) (enhancing a Class-B-misdemeanor DWI conviction to a Class A misdemeanor if it is shown at trial that defendant has been previously convicted one time for DWI) (West, Westlaw through 2017 1st C.S.).
This cause was transferred from the Third Court of Appeals pursuant to a docket equalization order issued by the Texas Supreme Court. See TEX. GOV'T CODE ANN. § 73.001 (West, Westlaw through 2017 1st C.S.).
Phillips pleaded not guilty to the charge, and the case was tried to a jury. After a two-day trial, the jury found Phillips guilty of driving while intoxicated. See id. § 49.04(a). After the jury's verdict, the State and Phillips announced in open court that they had reached an agreement on punishment and waived their right to a jury trial on punishment. The trial court signed a judgment stating that Phillips was adjudged guilty of DWI as a second offense and—pursuant to the sentencing agreement reached by both sides—assessed his punishment at 48 days' confinement in county jail and suspension of his driver's license for 180 days. This appeal followed.
Phillips's court-appointed appellate counsel has filed an Anders brief. See Anders v. California, 386 U.S. 738, 744 (1967). We affirm.
I. ANDERS BRIEF
Pursuant to Anders v. California, Phillips'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. 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 and Kelly v. State, Phillips's counsel carefully discussed why, under controlling authority, there is no reversible error in the trial court's judgment. See High, 573 S.W.2d at 813; Kelly, 436 S.W.3d at 319-22. Phillips's appellate counsel also notified this Court that he: (1) notified Phillips that he has filed an Anders brief and a motion to withdraw; (2) provided Phillips with copies of both pleadings; (3) informed Philllips of his rights to file a pro se response, review the record preparatory to filing that response, and seek discretionary review if we concluded that the appeal is frivolous; (4) provided Phillips with a pro se motion for access to the appellate record; and (5) informed Phillips that the pro se response, if any, should identify for the Court those issues which he believes the Court should consider in deciding whether the case presents any meritorious issues. See Anders, 386 U.S. at 744; Kelly, 436 S.W.3d at 319-20; Stafford, 813 S.W.2d at 510; see also In re Schulman, 252 S.W.3d at 409 n.23. An adequate time has passed, and Phillips has not filed a pro se response.
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 at 409 n.23 (quoting Wilson v. State, 955 S.W.2d 693, 696-97 (Tex. App.—Waco 1997, no pet.).
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 fully examined the appellate record and counsel's Anders brief. The State has not filed a brief in this matter. Phillips's counsel points out that although the State charged Phillips with DWI as a second offense, a Class A misdemeanor, the record is devoid of any evidence of a previous DWI conviction. See TEX. PENAL CODE ANN. § 49.09(a). Further, Phillips points out that the punishment assessed in this case was within the range of a Class B misdemeanor DWI. As a result, Phillips's counsel asks us to reform the judgment to reflect that he was convicted for DWI, a Class B misdemeanor, rather than DWI as a second offense.
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 the judgment to show a fine imposed but not stated in the judgment); Nolan v. State, 39 S.W.3d 697, 698 (Tex. App.—Houston [1st Dist.] 2001, no pet.).
In light of the record before this Court, and the authority vested in this Court, we accordingly modify the judgment to speak the truth and change a portion of the judgment to read as follows:
It is the order of the Court that the said defendant William Phillips who has been adjudged guilty of the offense of DWI , a Class B misdemeanor be and is hereby sentenced to be imprisoned in the County Jail of Travis County, Texas for 48 days, and that the State of Texas do have and recover of the Defendant the said fine of $0 dollars, and all costs of this prosecution.
(emphasis added).
Having found nothing that would arguably support an appeal, except for the modification of the judgment, we agree with counsel that the remainder of the appeal is wholly frivolous. 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.
III. MOTION TO WITHDRAW
In accordance with Anders, Phillips'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 Jeffrey 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 this Court's opinion, counsel is ordered to send a copy of this opinion and this Court's judgment to Phillips and advise him of his right to file a petition for discretionary review. 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).
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 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 the Texas Rule of Appellate Procedure 68.4. See TEX. R. APP. P. 68.4.
IV. CONCLUSION
We affirm the judgment of the trial court as modified.
GINA M. BENAVIDES,
Justice Do not publish.
TEX. R. APP. P. 47.2 (b). Delivered and filed the 8th day of February, 2018.