                                NUMBER 13-14-00247-CR

                                COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI - EDINBURG

SYLVIA ANN MARTINEZ,                                                        Appellant,

                                             v.

THE STATE OF TEXAS,                                                         Appellee.


                    On appeal from the 156th District Court
                           of Bee County, Texas.


                         MEMORANDUM OPINION
              Before Justices Benavides, Perkes, and Longoria
                Memorandum Opinion by Justice Benavides

       A Bee County grand jury indicted appellant Sylvia Ann Martinez for injury to a

child, a state jail felony.    See TEX. PENAL CODE ANN. § 22.04(a)(3) (West, Westlaw

through 2013 3d C.S.).        On October 17, 2011, Martinez pleaded nolo contendere to a

lesser offense of assault—family violence, a Class A misdemeanor.        See id. § 22.01
(West, Westlaw through 2013 3d C.S.).         That same day, the trial court sentenced

Martinez to one year in the Bee County Jail, suspended and probated for two years,

assessed a fine of $750, and placed Martinez under twenty-four conditions of community

supervision.

       On June 12, 2012, the State filed a motion to revoke Martinez’s community

supervision alleging among other things that Martinez was under the influence of alcohol

in a public place, failed to report an arrest for disorderly conduct, and failed to pay fines

and court costs.     The trial court continued Martinez’s community supervision and

amended Martinez’s conditions of community supervision to include, inter alia,

participation in: a substance abuse treatment program, alcoholics or narcotics

anonymous, an anger management program, and a moral reconation therapy program.

       On October 30, 2012, the State filed a second motion to revoke Martinez’s

community supervision on various grounds, including that she:            failed to report a

September 15, 2012 arrest, failed to successfully complete a substance abuse treatment

program, and consumed alcohol. On April 16, 2013, the trial court continued Martinez’s

community supervision and among other conditions, ordered her to participate in:          an

outpatient substance abuse treatment program three times per week, an outpatient

psychiatric treatment program, and an outpatient anger management program.

       On December 3, 2013, the State filed a third motion to revoke Martinez’s

community supervision and alleged eight violations of the terms of her community

supervision, including: (1) intentionally and knowingly withdrawing from the substance

abuse treatment program without the trial court’s release; (2) intentionally and knowingly

failing to report in person to the supervision officer of Bee County; (3) intentionally and


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knowingly failing to complete the anger management program; (4) intentionally and

knowingly failing to attend alcoholics anonymous meetings; and (5) intentionally and

knowingly failing to submit to a random urinalysis.1 On April 1, 2014, the trial court held

a hearing on the revocation motion, and Martinez pled “true” to all of the State’s

allegations supporting revocation.          At the hearing, the trial court orally pronounced that

Martinez “violated the terms and conditions of [her] probation,” revoked her community

supervision, and sentenced her to one year imprisonment in the Bee County Jail.                         This

appeal followed.      Martinez’s court-appointment counsel has filed an Anders brief. See

Anders v. California, 386 U.S. 738, 744 (1967). We affirm as modified.

                                           I. ANDERS BRIEF

      Pursuant to Anders v. California, Martinez’s court-appointed appellate counsel

has filed a brief and a motion to withdraw with this Court, stating that her review of the

record yielded no grounds of error upon which an appeal can be predicated.                            See id.

Counsel’s brief meets the requirements of Anders as it presents a professional

evaluation demonstrating why there are no arguable grounds to advance on appeal.

See In re Schulman, 252 S.W.3d 403, 407 n.9 (Tex. Crim. App. 2008) (“In Texas, an

Anders brief need not specifically advance 'arguable' points of error if counsel finds

none, but it must provide record references to the facts and procedural history and set

out pertinent legal authorities.”) (citing Hawkins v. State, 112 S.W.3d 340, 343–44 (Tex.

App.—Corpus Christi 2003, no pet.)); Stafford v. State, 813 S.W.2d 503, 510 n.3 (Tex.

Crim. App. 1991).

      In compliance with High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel

      1   Other violations included Martinez’s failure to pay various fees, fines, and court costs.


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Op.] 1978) and Kelly v. State, 436 S.W.3d 313, 319–22 (Tex. Crim. App. 2014),

Martinez’s counsel carefully discussed why, under controlling authority, there is no

reversible error in the trial court's judgment. Martinez’s counsel has also ensured that

Martinez has been (1) notified that counsel has filed an Anders brief and a motion to

withdraw; (2) provided with copies of both pleadings; (3) informed of her rights to file a

pro se response, 2 review the record preparatory to filing that response, and seek

discretionary review if we conclude that the appeal is frivolous; and (4) provided with a

form motion for pro se access to the appellate record, lacking only Martinez’s signature

and the date and including the mailing address of this Court, with instructions to file the

motion within ten days.        See Anders, 386 U.S. at 744; Kelly, 436 S.W.3d at 319–20,

Stafford, 813 S.W.2d at 510 n.3; see also In re Schulman, 252 S.W.3d at 409 n.23.

        Martinez has filed neither a timely motion seeking pro se access to the appellate

record nor a motion for extension of time to do so.           No pro se brief was filed.

                                      II. INDEPENDENT REVIEW

        Upon receiving an Anders brief, we must conduct a full examination of all the

proceedings to determine whether the case is wholly frivolous.                  Penson v. Ohio, 488

U.S. 75, 80 (1988).       We have reviewed the entire record and counsel’s brief, and we

have found nothing that would arguably support an appeal.                 See Bledsoe v. State, 178

S.W.3d 824, 826–28 (Tex. Crim. App. 2005). (“Due to the nature of Anders briefs, by

indicating in the opinion that it considered the issues raised in the briefs and reviewed


        2   The Texas Court of Criminal Appeals has held that “the pro se response need not comply with
the rules of appellate procedure in order to be considered. Rather, the response should identify for the
court those issues which the indigent appellant believes the court should consider in deciding whether the
case presents any meritorious issues.” In re Schulman, 252 S.W.3d 403, 409 n.23 (Tex. Crim. App.
2008) (quoting Wilson v. State, 955 S.W.2d 693, 696–97 (Tex. App.—Waco 1997, no pet.)).


                                                    4
the record for reversible error but found none, the court of appeals met the requirement

of Texas Rule of Appellate Procedure 47.1.”); Stafford, 813 S.W.2d at 509. There is no

reversible error in the record.

       Despite concluding that there is no reversible error in the judgment, counsel

requests that we modify the trial court’s judgment on three grounds:     (1) correcting the

amount owed on Martinez’s fine to $740.00; (2) correcting the portion of the judgment

discussing credit for time served; and (3) adding the findings made by the trial court

regarding Martinez’s community supervision violations. We have the power to modify

incorrect judgments when the necessary data and 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) (en banc).

       First, we agree with Martinez’s counsel that the record shows that the trial court

imposed the same $750.00 fine in its judgment revoking Martinez’s community

supervision as it did in the original judgment. The record shows, however, that during

her community supervision, Martinez had paid a total of $184.00 toward various fees,

costs, and her fine. Of the $184.00 paid, $10.00 was remitted to her $750.00 fine.

Therefore, Martinez’s fine should be corrected to reflect her $10.00 payment and be

modified to $740.00. Next, counsel notes that Martinez accrued a total of 81 days of jail

credit for time served at the Bee County Jail. This credit, while noted in the trial court’s

judgment, was erroneously identified as credit for time served in the Texas Department

of Criminal Justice’s Institutional Division rather than in the Bee County Jail.   As such,

we conclude that the judgment should be modified to appropriately identify Martinez’s

credit as time served in the Bee County Jail rather than in the Texas Department of


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Criminal Justice’s Institutional Division.        Finally, counsel requests that we modify the

trial court’s judgment to state which conditions of community supervision the trial court

found that Martinez violated. While the record is clear that Martinez pled “true” to all

eight of the State’s allegations, the trial court’s oral pronouncement was not specific as to

which allegations it found that Martinez violated.              Instead, the trial court found that

Martinez “violated the terms and conditions of [her] probation,” without any more

specificity as to which violations it found. Because our power to modify judgments is

available only when “the necessary data and information is available to do so,” see

Bigley, 865 S.W.2d at 27–28, and we do not have the necessary information available to

modify this portion of Martinez’s judgment, we decline to do so. Accordingly, the trial

court’s judgment revoking community supervision is affirmed as modified.

                                      III. MOTION TO WITHDRAW

       In accordance with Anders, Martinez’s attorney has asked this Court for

permission to withdraw as counsel for appellant.             See Anders, 386 U.S. at 744; see also

In re Schulman, 252 S.W.3d at 408 n.17 (citing Jeffery v. State, 903 S.W.2d 776, 779–80

(Tex. App.—Dallas 1995, no pet.) (“[I]f an attorney believes the appeal is frivolous, he

must withdraw from representing the appellant. To withdraw from representation, the

appointed attorney must file a motion to withdraw accompanied by a brief showing the

appellate court that the appeal is frivolous.”) (citations omitted)). We grant counsel’s

motion to withdraw.         Within five days of the date of this Court’s opinion, counsel is

ordered to send a copy of this opinion and this Court’s judgment to Martinez and to

advise her of her right to file a petition for discretionary review. 3 See TEX. R. APP. P.


       3   No substitute counsel will be appointed.   Should appellant wish to seek further review of this

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48.4; see also In re Schulman, 252 S.W.3d at 412 n.35; Ex parte Owens, 206 S.W.3d

670, 673 (Tex. Crim. App. 2006).



                                                                    /s/ Gina M. Benavides
                                                                    GINA M. BENAVIDES,
                                                                    Justice


Do not publish.
TEX. R. APP. P. 47.2 (b).

Delivered and filed the
26th day of February, 2015.




case by the Texas Court of Criminal Appeals, he must either retain an attorney to file a petition for
discretionary review or file a pro se petition for discretionary review. Any petition for discretionary review
must be filed within thirty days from the date of either this opinion or the last timely motion for rehearing or
timely motion for en banc reconsideration that was overruled by this Court. See TEX. R. APP. P. 68.2.
Any petition for discretionary review must be filed with the clerk of the Court of Criminal Appeals, see TEX.
R. APP. P. 68.3, and should comply with the requirements of Texas Rule of Appellate Procedure 68.4.
See TEX. R. APP. P. 68.4.


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