Jacob Ramirez v. State ( 2012 )

NO. 07-11-00258-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
MAY 22, 2012
JACOB RAMIREZ, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
FROM THE 251ST DISTRICT COURT OF RANDALL COUNTY;
NO. 20,742-C; HONORABLE ANA ESTEVEZ, JUDGE
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
Appellant Jacob Ramirez appeals from the trial court's adjudication of his guilt for
the offense of manslaughter with a deadly weapon1 and the resulting sentence of twelve
years of imprisonment. Appellant's attorney has filed a brief in compliance with Anders
v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967) and In re Schulman,
252 S.W.3d 403 (Tex.Crim.App. 2008). Agreeing with appointed counsel's conclusion
the record fails to show any arguably meritorious issue that could support the appeal,
we affirm the trial court's judgment.
1
Tex. Penal Code Ann. § 19.04 (West 2011).
In April 2009, appellant allowed a fifteen-year-old girl to drive his car, which
crashed, causing her death. Appellant was charged by indictment with aggravated
assault with a deadly weapon and manslaughter with a deadly weapon. Appellant plead
guilty to manslaughter with a deadly weapon. The trial court deferred adjudication of
guilt and placed appellant on community supervision for a period of seven years.
Appellant's community supervision was conditioned on his compliance with specified
terms and conditions. In December 2010, the State filed a motion to proceed with an
adjudication of guilt and the court heard the motion in May 2011.
At the outset of the hearing, the State waived one of its allegations. Appellant
plead "true" to each of the State's remaining allegations. The record also contains
documents signed by appellant, including a stipulation of evidence and judicial
confession. Appellant testified at the hearing, admitting each violation, and explaining
his reasons for each violation. The trial court, based on appellant's plea of "true" and the
evidence presented, revoked his community supervision and adjudicated appellant
guilty. The trial court assessed punishment against appellant at twelve years of
imprisonment. This appeal followed.
Thereafter, appellant's appointed appellate counsel filed a motion to withdraw
and a brief in support pursuant to Anders in which he certifies that he has diligently
reviewed the record and, in his professional opinion, under the controlling authorities
and facts of this case, there is no reversible error or legitimate grounds on which a non-
frivolous appeal arguably can be predicated. The brief discusses the procedural history
of the case and the proceedings in connection with the motion to adjudicate guilt.
Counsel discusses the applicable law and sets forth the reasons he concludes there are
2
no arguably meritorious issues on which to base an appeal. Counsel has certified that a
copy of the Anders brief and motion to withdraw have been served on appellant, and
that counsel has advised appellant of his right to review the record and file a pro se
response. Johnson v. State, 885 S.W.2d 641, 645 (Tex.App.--Waco 1994, pet. ref'd).
By letter, this Court also notified appellant of his opportunity to submit a response to the
Anders brief and motion to withdraw filed by his counsel. Appellant has filed a response,
raising several issues.
In conformity with the standards set out by the United States Supreme Court, we
will not rule on the motion to withdraw until we have independently examined the record.
Nichols v. State, 954 S.W.2d 83, 86 (Tex.App.--San Antonio 1997, no pet.). If this Court
determines the appeal has merit, we will remand it to the trial court for appointment of
new counsel. See Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim. App.1991).
In his brief, counsel concludes no arguably meritorious issues are presented
here. We agree. Appellant entered a plea of "true" to each of the State's allegations the
trial court considered. These admissions alone warranted the trial court's decision to
adjudicate guilt. See Lewis v. State, 195 S.W.3d 205, 209 (Tex.App.--San Antonio
2006, no pet.) (holding that one's probation can be revoked on any ground supported by
the evidence).
We note also appellant's punishment was within the permissible range for a
second degree felony. Appellant originally plead guilty to manslaughter with a deadly
weapon, an offense with an applicable punishment range of not more than 20 years or
less than 2 years. See Tex. Penal Code Ann. § 12.33 (West 2011). The trial court
sentenced appellant to twelve years of imprisonment, a term well within the applicable
3
range. It is the general rule that as long as a sentence is within the proper range of
punishment, it will not be disturbed on appeal. Jackson v. State, 680 S.W.2d 809, 814
(Tex.Crim.App. 1984); Rodriguez v. State, 917 S.W.2d 90, 92 (Tex.App.--Amarillo 1996,
pet. ref'd) (Texas courts have traditionally held that as long as the sentence is within the
range of punishment established by the Legislature in a valid statute, it does not violate
state or federal prohibitions).
We have also considered each of the issues raised by appellant in his response.
We do not find any raising arguably meritorious grounds for appeal.
Our review convinces us that appellate counsel conducted a complete review of
the record. We have also made an independent examination of the record to determine
whether there are any arguable grounds which might support the appeal from the
adjudication, revocation and sentence. We agree it presents no arguably meritorious
grounds for review. We grant counsel's motion to withdraw.2
We do note there is an ambiguity in the judgment. A $1000 fine was assessed at
the time of the deferred adjudication. At the revocation, however, there was no mention
of the fine and it was not part of the oral rendition of appellant’s sentence. The front of
the judgment shows “Fine N/A,” while the body of the judgment shows the original fine
of $1000. 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); Young v. State, No. 06-10-00137-
2
Counsel shall, within five days after the opinion is handed down, send his client
a copy of the opinion and judgment, along with notification of the defendant’s right to file
a pro se petition for discretionary review. Tex. R. App. P. 48.4.
4
CR, 2011 Tex.App. LEXIS 1491 (Tex.App.—Texarkana March 2, 2011, no pet.) (mem.
op., not designated for publication) (applying same to revocation proceeding). 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. 1981) (panel
op.) (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 Tex. App. LEXIS 6641,
(Tex. App.—Corpus Christi Aug. 25, 2009, no pet.) (mem. op., not designated for
publication) (deleting a fine from the judgment).
It is clear to us here the trial court did not render the fine so it is not part of the
sentence. We correct the ambiguity and strike the conflicting language appearing to
impose the fine against appellant. As reformed, the judgment of the trial court is
affirmed.
James T. Campbell
Justice
Do not publish.
5