Clydell Marie Olanipekun v. State ( 2020 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-19-00074-CR
No. 02-19-00075-CR
___________________________
CLYDELL MARIE OLANIPEKUN, Appellant
V.
THE STATE OF TEXAS
On Appeal from the 297th District Court
Tarrant County, Texas
Trial Court Nos. 1381100D, 1380032D
Before Birdwell, Bassel, and Womack, JJ.
Memorandum Opinion by Justice Womack
MEMORANDUM OPINION
In cause number 1381100D, appellant Clydell Marie Olanipekun pleaded guilty
to aggravated robbery, and in cause number 1380032D, she pleaded guilty to a state-
jail-felony count of theft. The trial court deferred adjudication in both causes, placing
Olanipekun on community supervision for ten years in cause number 1381100D and
for five years in cause number 1380032D. The State filed petitions to proceed to
adjudication in both causes, alleging that Olanipekun had violated certain conditions
of her community supervision. Both petitions set forth the alleged violations in
separate paragraphs, with paragraphs one and two of the petition in cause number
1381100D being identical to paragraphs one and two of the petition in cause number
1380032D. The petition in cause number 1381100D, unlike the one in cause number
1380032D, contained a third paragraph alleging Olanipekun had committed a third
violation of her community supervision in that case.
The trial court held a joint hearing on the State’s petitions. At the hearing,
Olanipekun pleaded not true to the first paragraph in both petitions, true to the
second paragraph in both petitions, and true to the third paragraph in the petition in
cause number 1381100D. The trial court found the allegations in the first paragraphs
not true but found the allegations in the second paragraphs true. The trial court also
found true the allegations in the third paragraph of the State’s petition in cause
number 1381100D. It then found Olanipekun guilty of aggravated robbery and theft
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and sentenced her to confinement for fifteen years and one year, respectively, for
those offenses. Olanipekun appealed.
Olanipekun’s court-appointed appellate counsel has filed a motion to withdraw
as counsel and a brief in support of that motion. Counsel’s brief and motion meet the
requirements of Anders v. California by presenting a professional evaluation of the
record demonstrating why there are no arguable grounds for relief. See 386 U.S. 738,
744, 87 S. Ct. 1396, 1400 (1967). In compliance with Kelly v. State, counsel notified
Olanipekun of the motion to withdraw, provided her with a copy of the Anders brief,
informed her of her right to file a pro se response, informed her of her pro se right to
seek discretionary review should this court hold the appeal is frivolous, and took
concrete measures to facilitate her review of the appellate record. See 436 S.W.3d 313,
319 (Tex. Crim. App. 2014). Olanipekun filed a pro se response. The State filed a
letter responding to counsel’s Anders brief, stating that it agrees with counsel’s
assessment that this appeal is frivolous.
After an appellant’s court-appointed counsel files a motion to withdraw on the
ground that the appeal is frivolous and fulfills the requirements of Anders, this court
must independently examine the record to see if any arguable ground may be raised
on her behalf. See Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991). We
also consider the briefs and any pro se response. See In re Schulman, 252 S.W.3d 403,
408–09 (Tex. Crim. App. 2008) (orig. proceeding). Only after we conduct our own
examination to determine whether counsel has correctly assessed the case may we
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grant his motion to withdraw. See Penson v. Ohio, 488 U.S. 75, 82–83, 109 S. Ct. 346,
351 (1988).
We have carefully reviewed counsel’s brief, Olanipekun’s pro se response, the
State’s response, and the records in this case. We note that in his Anders brief, counsel
notes a clerical error in the trial court’s judgment adjudicating guilt in cause number
1380032D and asks us to modify that judgment to correct the clerical error.
Specifically, counsel notes that the judgment incorrectly reflects that Olanipekun
pleaded true to paragraph three in the State’s petition in that cause.
As we noted above, unlike its petition in cause number 1381100D, the State’s
petition in cause number 1380032D did not contain a third paragraph alleging
Olanipekun committed a third violation of the terms of her community supervision.
The record from the hearing on the State’s petitions affirmatively demonstrates that
after Olanipekun pleaded not true and true, respectively, to the allegations in
paragraphs one and two of the petitions in both causes, she then pleaded true to the
allegations in paragraph three “in the agg[ravated] robbery case”—that is, cause
number 1381100D. The record also shows that the trial court found Olanipekun
pleaded true to paragraph three only in cause number 1381100D.
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. See Davis
v. State, No. 01-02-00404-CR, 2003 WL 139655, at *1 (Tex. App.—Houston [1st
Dist.] Jan. 9, 2003, no pet.) (mem. op., not designated for publication) (modifying
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judgment in Anders appeal to reflect proper plea). Accordingly, we modify the “Plea
to Motion to Adjudicate:” portion of the trial court’s judgment adjudicating guilt in
cause number 1380032D by deleting the phrase “Paragraph Three-True.”
Having modified the judgment adjudicating guilt in cause number 1380032D to
correct the clerical error counsel identified, we agree with counsel that these appeals
are wholly frivolous and without merit; we find nothing in the records before us that
arguably might support them. See Bledsoe v. State, 178 S.W.3d 824, 827–28 (Tex. Crim.
App. 2005); see also Meza v. State, 206 S.W.3d 684, 685 n.6 (Tex. Crim. App. 2006).
Accordingly, we grant counsel’s motion to withdraw, affirm the trial court’s judgment
in cause number 1381100D, and affirm the trial court’s judgment in cause number
1380032D as modified. See Tex. R. App. P. 43.2(a), (b).
/s/ Dana Womack
Dana Womack
Justice
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: March 12, 2020
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