Summary
modifying judgment in Anders appeal to reflect proper plea
Summary of this case from Olanipekun v. StateOpinion
No. 01-02-00404-CR.
Opinion Issued January 9, 2003. DO NOT PUBLISH, Tex.R.App.P. 47.
Appeal from County Criminal Court at Law No. 4, Harris County, Texas, Trial Court Cause No. 1090156.
Before Chief Justice RADACK and Justices NUCHIA and JENNINGS.
MEMORANDUM OPINION
Appellant, Jerry Jay Davis, was convicted by a jury of driving while intoxicated, and the trial court assessed punishment at 180 days' confinement in jail. We affirm. Appellant's court-appointed counsel filed a motion to withdraw as counsel and a brief concluding that the appeal is wholly frivolous and without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 1400 (1967), by presenting a professional evaluation of the record and demonstrating why there are no arguable grounds of error to be advanced. See High v. State, 573 S.W.2d 807, 811 (Tex.Crim. App. 1978); Moore v. State, 845 S.W.2d 352, 353 (Tex.App.-Houston [1st Dist.] 1992, pet. ref'd). The brief states that a copy was delivered to appellant, whom counsel advised by letter of his right to examine the appellate record and file a pro se brief. See Stafford v. State, 813 S.W.2d 503, 510 (Tex.Crim.App. 1991). More than 30 days have passed, and appellant has not filed a pro se brief. We have carefully reviewed the record and counsel's brief. We find no reversible error in the record, and agree that the appeal is wholly frivolous. However, we do find nonreversible error in the judgment: it reads that appellant entered a plea of "guilty." We may correct and modify the judgment of a trial court to make the record speak the truth when we have the necessary data and information to do so, or to make any appropriate order as the law and nature of the case may require. See Campbell v. State, 900 S.W.2d 763, 773 (Tex.App.-Waco 1995, no pet.); Tex. R. App. P. 43.2(b), 43.6. Accordingly, we modify the trial court's judgment to read that appellant entered a plea of "not guilty." We affirm the judgment, as modified. We grant counsel's motion to withdraw. See Stephens v. State, 35 S.W.3d 770, 771 (Tex.App.-Houston [1st Dist.] 2000, no pet.).
Counsel still has a duty to inform appellant of the result of this appeal and also to inform appellant that he may, on his own, pursue discretionary review in the Texas Court of Criminal Appeals. See Ex parte Wilson, 956 S.W.2d 25, 27 (Tex.Crim. App. 1997).