Bonilla, Henry Antonio v. The State of Texas--Appeal from 339th District Court of Harris County

Opinion issued December 5, 2002

In The

Court of Appeals

For The

First District of Texas

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NO. 01-01-01127-CR

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HENRY ANTONIO BONILLA, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 339th District Court

Harris County, Texas

Trial Court Cause No. 851492

MEMORANDUM OPINION

Appellant, Henry Antonio Bonilla, pleaded guilty without a plea bargain agreement to the offense of murder. At the conclusion of a punishment hearing, the trial court assessed punishment at 30 years' confinement. We modify the trial court's judgment and affirm it as modified.

Appellant's court-appointed counsel filed a brief concluding that the appeal is wholly frivolous and without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1396, 1400 (1967), by presenting a professional evaluation of the record and demonstrating why there are no arguable grounds of reversible error to be advanced. See High v. State, 573 S.W.2d 807, 811 (Tex. Crim. App. 1978); Moore v. State, 845 S.W.2d 352, 353 (Tex. App.--Houston [1st Dist.] 1992, pet. ref'd).

A copy of counsel's brief was delivered to appellant, who was advised of his right to examine the appellate record and file a pro se brief. See Stafford v. State, 813 S.W.2d 503, 510 (Tex. Crim. App. 1991). More than thirty days have passed, and appellant has not filed a pro se brief.

In his brief, counsel points out that according to the reporter's record of the punishment hearing, the trial court sentenced appellant to confinement for 30 years. The judgment, however, reflects a sentence of 35 years. When there is a variance between the oral pronouncement of sentence and the written memorialization of the sentence, the oral pronouncement controls. Coffey v. State, 979 S.W.2d 326, 328 (Tex. Crim. App. 1998). This Court may correct and reform the judgment of the court below to make the record speak the truth when we have the necessary data and information to do so, or make any appropriate order as the law and the nature of the case may require. Campbell v. State, 900 S.W.2d 763, 773 (Tex. App.--Waco 1995, no pet.); Tex. R. App. P. 43.2(b), 43.6.

Accordingly, we modify the trial court's judgment to read that the punishment imposed was 30 years. We have carefully reviewed the record and find no reversible error.

The judgment is affirmed, as modified.

Panel consists of Justices Taft, Alcala, and Price. (1)

Do not publish. Tex. R. App. P. 47.

1. The Honorable Frank C. Price, former Justice, Court of Appeals, First District of Texas at Houston, participating by assignment.