                                      In The
                                 Court of Appeals
                        Seventh District of Texas at Amarillo
                                  ________________________

                                       No. 07-13-00365-CR
                                       No. 07-13-00366-CR
                                  ________________________

                           RUSSELL WAYNE UHRIG, APPELLANT

                                                  V.

                              THE STATE OF TEXAS, APPELLEE



                           On Appeal from the 19th District Court
                                McLennan County, Texas
   Trial Court Nos. 2011-1107-C1 & 2011-2067-C1; Honorable Ralph T. Strother, Presiding


                                           March 10, 2015

                                MEMORANDUM OPINION
                      Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.


      On October 29, 2012, pursuant to a plea of guilty, Appellant, Russell Wayne

Uhrig, was convicted in trial court cause number 2011-1107-C1 of the second degree

felony offense of attempted aggravated sexual assault of a disabled individual.1 On the

same day, in trial court cause number 2011-2067-C1, and also pursuant to a plea of


      1   TEX. PENAL CODE ANN. § 15.01(b) (West 2011), § 22.021(a)(1)(A), (2)(C) (West Supp. 2014).
guilty, he was convicted of the third degree felony offense of harassment by persons in

certain correctional facilities.2 In accordance with a plea agreement, he was sentenced

in each cause to ten years confinement, suspended in favor of community supervision

for ten years. Nine months later, the State moved to revoke his community supervision

based on multiple violations of the terms and conditions thereof. At a hearing on the

State’s motion, where Appellant entered a plea of “not true” to the allegations asserted

therein, the trial court found some, but not all of the allegations to be true and entered a

judgment in each cause revoking Appellant’s community supervision and assessing the

original sentence of ten years. In presenting these appeals, Appellant’s counsel has

filed an Anders3 brief in support of a motion to withdraw. We grant counsel’s motion

and affirm.


       MOTION TO W ITHDRAW


       In support of his motion to withdraw, counsel certifies he has conducted a

conscientious examination of the records in each case, and in his opinion, the record

reflects no potentially plausible basis for reversal of Appellant’s conviction. Anders v.

California, 386 U.S. 738, 744-45, 87 S. Ct. 1396, 18 L. Ed.2d 493 (1967); In re

Schulman, 252 S.W.3d 403, 406 (Tex. Crim. App. 2008).


       Counsel candidly discusses why, under the controlling authorities, the record

supports that conclusion. See High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App.


        2 TEX. PENAL CODE ANN. § 22.11(a)(1) (West 2011). The indictment alleged Appellant, while

incarcerated, and with intent to harass, alarm or annoy a named individual, caused that individual to
contact his saliva.
       3Anders   v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed.2d 493 (1967).


                                                     2
1978). Counsel has demonstrated he has complied with the requirements of Anders

and In re Schulman by (1) providing a copy of the brief to Appellant, (2) notifying him of

his right to review the record and file a pro se response if he desired to do so,4 and (3)

informing him of his right to file a pro se petition for discretionary review.5                         In re

Schulman, 252 S.W.3d at 408. By letter, this Court granted Appellant an opportunity to

exercise his right to file a response to counsel’s brief, should he be so inclined. Id. at

409 n.23. Appellant did not file a response. Neither did the State favor us with a brief.


                                               BACKGROUND


        Appellant was accused of attempted sexual assault of a female with mental

health issues. While in jail on that charge, he spat on a correctional officer’s face which

gained him the second charge of harassment by persons in certain correctional

facilities.     Appellant, who himself suffers from mental health issues that require

medication, was originally found incompetent to stand trial and was confined to a State

mental health facility pursuant to article 46B.073 of the Texas Code of Criminal

Procedure.6




        4   See Kelly v. State, 436 S.W.3d 313 (Tex. Crim. App. 2014).

        5  Notwithstanding that 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, counsel must
comply with Rule 48.4 of the Texas Rules of Appellate Procedure which provides that counsel shall within
five days after this opinion is handed down, send Appellant a copy of the opinion and judgment together
with notification of his right to file a pro se petition for discretionary review. In re Schulman, 252 S.W.3d
at 408 n.22 & 411 n.35. The duty to send the client a copy of this court’s decision is ministerial in nature,
does not involve legal advice, and exists after the court of appeals has granted counsel’s motion to
withdraw. Id. at 411 n.33.

        6TEX. CODE CRIM. PROC. ANN. art. 46B.073 (West Supp. 2014) (allowing for commitment of a
defendant for restoration of competency).

                                                      3
       In March 2012, Appellant was found competent to stand trial and assist his

attorney in presenting a defense. On September 13, 2012, Appellant and the State

entered into the aforementioned plea agreement. The only condition of community

supervision specifically spelled out in the plea agreement was placement in the Mexia

State School. On October 29, 2012, judgments were entered in cause number 2011-

1107-C1, containing forty-four conditions of community supervision, and in cause

number 2011-2067-C1, containing twenty-two conditions of community supervision. On

May 31, 2013, the conditions were amended to include, among other conditions, a

transfer to the San Angelo State Supported Living Center, a lock-down facility, until

successfully discharged by the trial court or the McLennan County Community

Supervision and Corrections Department.


       Two months later, on July 31, 2013, the State moved to revoke Appellant’s

community supervision in both causes.       In cause number 2011-1107-C1, the State

alleged eleven separate violations of the condition that he “avoid injurious or vicious

habits” and seven failure-to-pay violations. In cause number 2011-2067-C1, the State

alleged the same eleven violations of the condition that he “avoid injurious or vicious

habits” and one failure-to-pay violation.       The “avoid injurious or vicious habits”

allegations included allegations that Appellant (1) punched the walls, (2) banged his

head, (3) punched and threatened to kill staff at the San Angelo Supported Living

Center, (4) engaged in verbally abusive conduct, (5) threw rocks, and (6) attempted to

leave the court-ordered facility.


       On October 7, 2013, at a hearing on the State’s motions to revoke, Appellant’s

community supervision officer was the sole witness. She testified that Appellant had

                                            4
difficulty abiding by rules, had serious aggression issues, and was placed on a one-to-

one staff based plan, which meant he was supervised twenty-four hours a day, seven

days a week. The staff person’s duties included reminding Appellant of his boundaries

and redirecting his behavior when it was considered harmful. Originally, his supervision

officer recommended to her director that his sex offender therapy occur on campus and

not off-site due to safety concerns; however, after several attempts, it was eventually

determined that Appellant was too dangerous to supervise. According to the officer’s

testimony, Appellant consistently punched walls, banged his head on both the walls and

floor, threw rocks, physically and verbally abused and threatened staff (including a

threat to shank and kill a staff member), attempted to leave the facility by jumping over a

fence, and engaged in other aggressive behavior on a regular basis. She concluded he

was not a candidate for community supervision and recommended revocation. At the

conclusion of the hearing, as to both causes, the trial court found seven of the eleven

“avoid injurious or vicious habits” violations to be true, while finding all of the remaining

violations to be not true.


       By the Anders brief, counsel raises four arguable issues questioning whether: (1)

Appellant was in custody for purposes of article 38.22 of the Texas Code of Criminal

Procedure when originally questioned; (2) trial counsel’s performance was ineffective for

failing to object to hearsay; (3) the evidence is sufficient to support certain, but not all

allegations; and (4) the trial court erred in denying Appellant credit for time spent in the

State Supported Living Center. Counsel ultimately concludes the arguable issues have

no merit.




                                             5
                                  STANDARD OF REVIEW


      When reviewing an order revoking community supervision, the sole question

before this Court is whether the trial court abused its discretion. Rickels v. State, 202

S.W.3d 759, 763 (Tex. Crim. App. 2006); Cardona v. State, 665 S.W.2d 492, 493 (Tex.

Crim. App. 1984); Jackson v. State, 645 S.W.2d 303, 305 (Tex. Crim. App. 1983). In a

revocation proceeding, the State must prove by a preponderance of the evidence that

the probationer violated a condition of community supervision as alleged in the motion

to revoke. Cobb v. State, 851 S.W.2d 871, 874 (Tex. Crim. App. 1993). When more

than one violation of the conditions of community supervision is alleged, a single

violation is adequate and the revocation order shall be affirmed if at least one sufficient

ground supports the court's order. Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim.

App. 1980); Jones v. State, 571 S.W.2d 191, 193 (Tex. Crim. App. 1978). The trial

court abuses its discretion in revoking community supervision if, as to every ground

alleged, the State fails to meet its burden of proof. Cardona, 665 S.W.2d at 494. In

determining the sufficiency of the evidence to sustain a revocation, we view the

evidence in the light most favorable to the trial court's ruling.    Jones v. State, 589

S.W.2d 419, 421 (Tex. Crim. App. 1979).


      Here, we have independently examined the entire record in both causes to

determine whether there are any non-frivolous issues which might support these

appeals. See Penson v. Ohio, 488 U.S. 75, 80, 109 S. Ct. 346, 102 L. Ed.2d 300

(1988); In re Schulman, 252 S.W.3d at 409; Stafford v. State, 813 S.W.2d 503, 511

(Tex. Crim. App. 1991). We have found no such issues. See Gainous v. State, 436

S.W.2d 137, 138 (Tex. Crim. App. 1969). After reviewing the records and counsel’s

                                            6
briefs, we agree with counsel that there is no plausible basis for reversal in either case.

See Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005).


          ATTORNEY’S FEES


          In our review of the record, we noticed a clerical error in the judgment. The

respective judgments assessed court costs of $1,478 in cause number 2011-1107-C1

and $744 in cause number 2011-2067-C1. Contained in the record of each cause is a

bill of cost prepared by the district clerk, indicating $750 of the $1,478 and $400 of the

$744 was for court-appointed attorney’s fees. Also contained in the record is the trial

court’s specific notation that it “did not assess attorney’s fees . . . as costs against the

defendant in this cause.”


          An appellate court has the power to correct and reform a trial court judgment to

make the record speak the truth when it has the necessary data and information to do

so. See Nolan v. State, 39 S.W.3d 697, 698 (Tex.App.—Houston [1st Dist.] 2001, no

pet.) (citing Asberry v. State, 813 S.W.2d 526, 529 (Tex.App.—Dallas 1991, pet. ref'd)).

See also TEX. R. APP. P. 43.2(b). Accordingly, the respective judgments and bills of

cost are modified to delete the requirement that Appellant pay either the $750 or the

$400 in court-appointed attorney’s fees. This order of reformation extends to any order

to withdraw funds from Appellant’s inmate account. Accordingly, as to each cause, the

district clerk is ordered to prepare an amended bill of cost and order to withdraw funds,

if any.




                                              7
                                   CONCLUSION


      As modified, the trial court’s judgments are affirmed and counsel's motion to

withdraw is granted.




                                                  Patrick A. Pirtle
                                                       Justice


Do not publish.




                                        8
