Allison Scott Shaw v. State ( 2019 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-18-00219-CR
Allison Scott Shaw, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF COMAL COUNTY, 207TH JUDICIAL DISTRICT
NO. CR2013-598, THE HONORABLE R. BRUCE BOYER, JUDGE PRESIDING
MEMORANDUM OPINION
Appellant Allison Scott Shaw was convicted by a jury of theft of property valued at
less than $2,500 with two prior theft convictions, see Tex. Penal Code § 31.03(a), (e)(4)(D), and
tampering with physical evidence, see id. § 37.09. Appellant elected to have the trial court decide
his punishment, see Tex. Code Crim. Proc. art. 37.07(2)(b), and the court assessed appellant’s
punishment, enhanced pursuant to the habitual offender provisions of the Penal Code, see Tex. Penal
Code §§ 12.425(c), 12.42(d), at confinement in the Texas Department of Criminal Justice for
20 years for the theft offense and for 60 years for the tampering offense.
Appellant’s court-appointed attorney has filed a motion to withdraw supported by a
brief concluding that the appeal is frivolous and without merit. The brief meets the requirements of
Anders v. California by presenting a professional evaluation of the record demonstrating why there
are no arguable grounds to be advanced. See Anders v. California, 386 U.S. 738, 744 (1967);
Garner v. State, 300 S.W.3d 763, 766 (Tex. Crim. App. 2009); see also Penson v. Ohio, 488 U.S. 75,
81–82 (1988).
Appellant’s counsel has certified to this Court that she sent copies of the motion and
brief to appellant, advised appellant of his right to examine the appellate record and file a pro se
response, and provided a motion to assist appellant in obtaining the record. See Kelly v. State,
436 S.W.3d 313, 319–20 (Tex. Crim. App. 2014); see also Anders, 386 U.S. at 744. Appellant did
not file a motion requesting access to the record, and, to date, has not filed a pro se response or
requested an extension of time to file a response.
We have conducted an independent review of the record—including the record of the
trial proceedings below and appellate counsel’s brief—and find no reversible error. See Anders,
386 U.S. at 744; Garner, 300 S.W.3d at 766; Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim.
App. 2005). We agree with counsel that the record presents no arguably meritorious grounds for
review and the appeal is frivolous. Counsel’s motion to withdraw is granted.1
On review of the record, however, we observe that the trial court’s written judgment
of conviction for theft contains non-reversible clerical error. The judgment states that the “Statute
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Appointed counsel certified to this Court that he advised appellant of his right to seek
discretionary review pro se should this Court declare his appeal frivolous. In addition, appellant was
informed of his right to file a pro se petition for discretionary review upon execution of the Trial
Court’s Certification of Defendant’s Right of Appeal. Nevertheless, appointed counsel must comply
with Rule 48.4 of the Texas Rules of Appellate Procedure, which mandates that counsel send
appellant a copy of this Court’s opinion and judgment along with notification of his right to file a
pro se petition for discretionary review within five days after this opinion is handed down. See Tex.
R. App. P. 48.4; see In re Schulman, 252 S.W.3d 403, 411 n.35 (Tex. Crim. App. 2008). The duty
to send appellant a copy of this Court’s decision is an informational one, not a representational one.
See In re Schulman, 252 S.W.3d at 411 n.33. It is ministerial in nature, does not involve legal
advice, and exists after this Court has granted counsel’s motion to withdraw. See id.2
for Offense” is “31.03(e)(4)(D) / 12.425(c) Penal Code.” These statutory provisions establish the
degree of offense and the punishment range for the instant theft offense: section 31.03(e)(4)(D)
establishes that the offense of theft of property valued at less than $2,500 with two prior convictions
is a state jail felony; section 12.425(c) is the state-jail felony habitual-offender provision applicable
in this case. However, the applicable statutory provisions for the offense for which appellant was
convicted also include section 31.03(a) of the Penal Code, the statutory provision that defines the
offense of theft.
This Court has authority to modify incorrect judgments when the necessary
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). Accordingly, we modify the judgment of conviction for theft in Count I
to reflect that the “Statute for Offense” is “31.03(a), (e)(4)(D) / 12.425(c) Penal Code.” As so
modified, the trial court’s judgment of conviction for theft in Count I is affirmed; the trial court’s
judgment of conviction for tampering with physical evidence in Count III is affirmed.
__________________________________________
Edward Smith, Justice
Before Chief Justice Rose, Justices Baker and Smith
Count I: Modified and, as Modified, Affirmed
Count III: Affirmed
Filed: April 17, 2019
Do Not Publish
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