                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-13-00304-CR
                                No. 10-13-00305-CR

MARK ANTHONY ROBINSON,
                                                          Appellant
v.

THE STATE OF TEXAS,
                                                          Appellee


                     From the County Court at Law No. 2
                          McLennan County, Texas
               Trial Court Nos. 20121594CR2 and 20121596CR2


                          MEMORANDUM OPINION

      In these two cases, which were tried together in a bench trial with Appellant

Mark Anthony Robinson representing himself, Robinson was convicted of the

misdemeanor offenses of possession of marihuana in the amount of two ounces or less

and possession of a controlled substance (hydrocodone) in an amount of less than 28

grams. The trial court found Robinson guilty and assessed jail sentences of 180 days

and 365 days, respectively, with the sentences to be served concurrently and with credit

for time served.
        Robinson’s appointed appellate counsel has filed a motion to withdraw and an

Anders brief in each case, asserting that he has diligently reviewed the appellate records

and that, in his opinion, the appeals are frivolous. See Anders v. California, 386 U.S. 738,

87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Although informed of his right to do so, Robinson

did not file pro se responses to the Anders briefs. The State did not file a brief in either

case.

        In an Anders case, we must, “after a full examination of all the proceedings, []

decide whether the case is wholly frivolous.” Id. at 744, 87 S.Ct. at 1400; accord Stafford v.

State, 813 S.W.2d 503, 509-11 (Tex. Crim. App. 1991). An appeal is “wholly frivolous” or

“without merit” when it “lacks any basis in law or fact.” McCoy v. Court of Appeals, 486

U.S. 429, 439 n.10, 108 S.Ct. 1895, 1902 n.10, 100 L.Ed.2d 440 (1988).

No. 10-13-00304-CR (Trial Court No. 20121594CR)

        We have conducted an independent review of the record, and because we find

this appeal to be wholly frivolous, we affirm the judgment.              We grant appointed

counsel’s motion to withdraw from representation of Robinson in this appeal.

Notwithstanding this grant, appointed counsel must send Robinson a copy of our

decision, notify him of his right to file a pro se petition for discretionary review, and

send this Court a letter certifying counsel’s compliance with Texas Rule of Appellate

Procedure 48.4. TEX. R. APP. P. 48.4; see also Ex parte Owens, 206 S.W.3d 670, 673-74 (Tex.

Crim. App. 2006).




Robinson v. State                                                                       Page 2
No. 10-13-00305-CR (Trial Court No. 20121596CR)

          Despite concluding that these appeals are frivolous, Robinson’s appointed

counsel notes the following error in the judgment in No. 10-13-00305-CR (Trial Court

No. 20121596CR): The written judgment incorrectly states a sentence of 180 days in jail,

yet the trial court orally pronounced a sentence of 365 days in jail.

          In Ferguson v. State, No. 10-13-00173-CR, ___ S.W.3d ___, 2014 WL 895196 (Tex.

App.—Waco Mar. 6, 2014, no pet. h.), appellant’s counsel filed an Anders brief stating

that there was no reversible error but noting that there was an error in the judgment

regarding the victim’s age at the time of the offense. Id., ___ S.W.3d at ___, 2014 WL

895196, at *1-2. Under those circumstances, we modified the judgment and affirmed the

judgment as modified. Id., ___ S.W.3d at ___, 2014 WL 895196, at *3. In a concurring

opinion joined by Justice Davis, Chief Justice Gray noted that counsel’s Anders brief was

actually a brief on the merits because it had pointed out and briefed an error in the

judgment. Id., ___ S.W.3d at ___, 2014 WL 895196, at *5; see also Hines v. State, No. 10-13-

00286-CR, 2014 WL 2466562, at *2 (Tex. App.—Waco May 29, 2014, no pet. h.) (mem.

op., not designated for publication) (adopting Chief Justice Gray’s position).

          This case is like Ferguson:        Despite finding no reversible error, counsel has

identified an error in the judgment.1 We will therefore treat the brief in that appeal as a

brief on the merits and address the error.2 See Hines, 2014 WL 2466562, at *2.



1
  We have conducted an independent review of the records, and we agree that no reversible error exists
in this appeal.

2
    Accordingly, counsel’s motion to withdraw in No. 10-13-00305-CR is dismissed as moot.

Robinson v. State                                                                              Page 3
        It is mandatory that in a case such as this, a defendant’s sentence must be

pronounced orally in his presence. TEX. CODE CRIM. PROC. ANN. art. 42.03, § 1(a) (West

Supp. 2013); Taylor v. State, 131 S.W.3d 497, 500 (Tex. Crim. App. 2004); Ex parte

Madding, 70 S.W.3d 131, 135 (Tex. Crim. App. 2002). The judgment, including the

sentence assessed, is just the written declaration and embodiment of that oral

pronouncement. TEX. CODE CRIM. PROC. ANN. art. 42.01, § 1 (West Supp. 2013); Taylor,

131 S.W.3d at 500; Madding, 70 S.W.3d at 135. When there is a conflict between the oral

pronouncement of sentence and the sentence in the written judgment, the oral

pronouncement controls. Taylor, 131 S.W.3d at 500; Thompson v. State, 108 S.W.3d 287,

290 (Tex. Crim. App. 2003); Madding, 70 S.W.3d at 135; Coffey v. State, 979 S.W.2d 326,

328 (Tex. Crim. App. 1998).

        Accordingly, we modify the judgment to reflect punishment by confinement in

the McLennan County Jail for a term of 365 days. We affirm the judgment as modified.



                                               REX D. DAVIS
                                               Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
       (Justice Scoggins concurs without opinion)
Affirmed (No. 10-13-00304-CR)
Affirmed as modified (No. 10-13-00305-CR)
Opinion delivered and filed June 19, 2014
Do not publish
[CR25]




Robinson v. State                                                                Page 4
