                          NUMBER 13-15-00584-CR

                          COURT OF APPEALS

                THIRTEENTH DISTRICT OF TEXAS

                   CORPUS CHRISTI - EDINBURG

BRANDON MARSH,                                                       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 Longoria

      Appellant Brandon Marsh appeals his conviction and two-year sentence for

unauthorized use of a motor vehicle, a state jail felony. See TEX. PENAL CODE ANN.

§ 31.07 (West, Westlaw through 2015 R.S.). We affirm as modified.
                                           I. BACKGROUND

       The State charged appellant with unauthorized use of a motor vehicle over his

failure to return a truck entrusted to him by his employer. See id. Appellant pled guilty

pursuant to a plea agreement which called for him to receive a suspended sentence of

eighteen months’ confinement in a state jail facility and be placed on community

supervision for the same length of time. The trial court accepted the plea of guilty but set

the sentencing hearing for a later date.

       Before the sentencing hearing, appellant filed a motion to withdraw the plea

agreement and enter an open plea. Appellant’s trial counsel explained that appellant had

learned that he had been denied parole in another case for which he was incarcerated.

His counsel explained that appellant was concerned that he would be unable to comply

with the terms and conditions of community supervision while still incarcerated. The trial

court granted appellant’s motion, found him guilty of the offense, and imposed a sentence

of two years’ confinement in state jail, court costs, and no fine.

       This appeal followed. Appellant’s appointed counsel has filed a motion to withdraw

supported by an Anders brief. See Anders v. California, 386 U.S. 738, 744 (1967).

                                           II. ANDERS BRIEF

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

has filed a brief and a motion to withdraw with this Court, stating that his 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



                                               2
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 Kelly v. State, 436 S.W.3d 313, 319 (Tex. Crim. App. 2014) and

High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel Op.] 1978), appellant’s

counsel carefully discussed why, under controlling authority, there is no reversible error

in the trial court's judgment.1 Counsel has informed this Court, in writing, that counsel

has: (1) notified the appellant that counsel has filed an Anders brief and a motion to

withdraw; (2) informed the appellant of his rights to file a pro se response,2 review the

record preparatory to filing that response, and seek discretionary review if the Court

concludes that the appeal is frivolous; and (3) provided appellant with a form motion for

pro se access to the appellate record, lacking only the appellant’s signature and the date

and including the mailing address for the court of appeals, with instructions to file the

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

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

adequate time has passed, and appellant has not filed a pro se motion for access to the




        1 Counsel informed us that he specifically considered whether: (1) appellant’s plea of guilty was
knowing and voluntary; (2) the sentence imposed by the trial court constituted cruel and unusual
punishment; and (3) appellant’s trial counsel provided constitutionally ineffective assistance. Counsel
ultimately concluded that none of these issues were meritorious.

        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.)).

                                                    3
appellate record or a motion for extension of time to do so. No pro se response was filed,

and the State has also not filed a brief.

                             III. INDEPENDENT REVIEW & MODIFICATION

       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, 827–28 (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 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. We have found no reversible

error in the record.

       However, we note that contrary to the reporter’s record of the final hearing, the

judgment in this case reflects that the length of appellant’s sentence was eighteen months

and imposed pursuant to a plea agreement. When the oral pronouncement of sentence

and the written judgment vary, the oral pronouncement controls. Ex parte Madding, 70

S.W.3d 131, 135 (Tex. Crim. App. 2002). Appellate courts have the authority to modify a

judgment to make it speak the truth when an issue is called to the court’s attention by any

source. See TEX. R. APP. P. 43.2(b) (authorizing appellate courts to modify the judgment

and affirm as modified); French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992) (en

banc). Accordingly, we modify the judgment to reflect that appellant was sentenced to

confinement in a state jail facility for two years and that there was no plea bargain. See

TEX. R. APP. P. 43.2(b); see also Wiedenfeld v. State, 450 S.W.3d 905, 907–08 (Tex.



                                            4
App.—San Antonio 2014, no pet.) (modifying the judgment in a case where counsel filed

an Anders brief to make it consistent with the trial court’s oral pronouncement of

sentence).

                                            IV. MOTION TO WITHDRAW

        In accordance with Anders, appellant’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 appellant and to advise him of

his right to file a petition for discretionary review. 3 See TEX. R. APP. P. 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).




        3  No substitute counsel will be appointed. Should appellant wish to seek further review of this 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 and should comply with
the requirements of Texas Rule of Appellate Procedure 68.4. See TEX. R. APP. P. 68.3, 68.4.

                                                       5
                                         V. CONCLUSION

       We affirm the trial court’s judgment as modified in this opinion.




                                                 Nora L. Longoria
                                                 Justice

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

Delivered and filed the
14th day of April, 2016.




                                             6
