Ernest Paty v. The State of Texas--Appeal from 114th District Court of Smith County

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-07-00055-CR
______________________________
ERNEST PATY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 114th Judicial District Court
Smith County, Texas
Trial Court No. 241-0123-03
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Moseley
MEMORANDUM OPINION

Ernest Paty appeals from the judgment adjudicating his guilt for the offense of indecency with a child. See Tex. Penal Code Ann. 21.11 (Vernon 2003).

The State abandoned one of the allegations contained in its application to adjudicate, and Paty pled "not true" to the other allegations contained in that application. (1) The trial court found that Paty had violated conditions of his deferred adjudication community supervision as follows: (1) by failing to pay his community supervision fees as ordered for the months of July and August 2006; (2) by failing to pay court costs as required on or before December 17, 2005; (3) by failing to pay the monthly payment on his fine for July and August 2006; and (4) by failing to pay the monthly payment on his restitution for August 2006. After a hearing on punishment, the trial court sentenced Paty to twenty years' imprisonment and a fine of $10,000.00. Paty was represented by the same appointed counsel at trial and on appeal.

Appellate counsel filed a brief July 19, 2007, under the mandate of Anders v. California, 386 U.S. 738 (1967), and Ex parte Senna, 606 S.W.2d 329, 330 (Tex. Crim. App. 1980), and has accordingly also filed a motion to withdraw. Counsel sent Paty a copy of the brief and advised him by letter that she believes there are no arguable contentions of error. She also informed Paty of his right to review the record and file a pro se response. Paty has not filed a response, nor has he requested an extension of time in which to file such a response.

Counsel has filed a brief which discusses the record and reviews the proceedings. Counsel has thus provided a professional evaluation of the record demonstrating why, in effect, there are no arguable grounds to be advanced, as required by High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. [Panel Op.] 1978). See also Stafford v. State, 813 S.W.2d 503, 510 n.3 (Tex. Crim. App. 1991). Counsel concluded from her review of the record that there is no arguable point of error to support the appeal.

Counsel further states in the brief that Paty was admonished by the trial court of his rights and that his deferred adjudication community supervision could be revoked if any of the allegations in the State's application were found true. Counsel's statements are supported by the record.

We have reviewed the record and find the evidence sufficient to support the trial court's findings of "true" to the State's allegations. However, in our review of the record, we note that the judgment incorrectly reflects that Paty pled "true" to the allegations contained in that application. The only "true" plea that Paty made was to the first paragraph of the State's application, that being the identity paragraph.

This Court has the authority to reform the judgment to make the record speak the truth when the matter has been called to our attention by any source. See French v. State, 830 S.W.2d 607 (Tex. Crim. App. 1992). In Asberry v. State, 813 S.W.2d 526, 529-30 (Tex. App.--Dallas 1991, pet. ref'd), the court noted that the authority of the appellate court to reform incorrect judgments is not dependent on request of any party; the appellate court may act sua sponte. The Texas Rules of Appellate Procedure provide direct authority for this Court to modify the judgment of the trial court. Tex. R. App. P. 43.2.

Therefore, we reform the trial court's judgment to reflect pleas of "not true" to paragraphs II through V of the State's application.

We have reviewed the record and agree with counsel there are no arguable points of error in this case. (2)

As reformed, we affirm the judgment of the trial court.

 

Bailey C. Moseley

Justice

 

Date Submitted: October 2, 2007

Date Decided: October 3, 2007

 

Do Not Publish

1. Paty pled "true" to paragraph I of the State's application to proceed to final adjudication; however, that paragraph was the identity paragraph and did not contain any allegations of violations of his deferred adjudication community supervision.

2. Since we agree this case presents no reversible error, we also, in accordance with Anders, grant counsel's request to withdraw from further representation of Paty in this case. No substitute counsel will be appointed. Should Paty wish to seek further review of this case by the Texas Court of Criminal Appeals, Paty must either retain an attorney to file a petition for discretionary review or Paty must 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 that is overruled by this Court. See Tex. R. App. P. 68.2. Any petition for discretionary review must be filed with this Court, after which it will be forwarded to the Texas Court of Criminal Appeals along with the rest of the filings in this case. See Tex. R. App. P. 68.3. Any petition for discretionary review should comply with the requirements of Rule 68.4 of the Texas Rules of Appellate Procedure. See Tex. R. App. P. 68.4.