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Date: 12-16-2017

Case Style:

HUNG LE V. THE STATE OF TEXAS

Case Number: 01-14-01019-CR

Judge: Per Curiam

Court: Texas Court of Appeals, First District

Plaintiff's Attorney: Kim K. Ogg and Daniel C. McCrory

Defendant's Attorney: Joseph W. Varela

Description: Without an agreed recommendation as to punishment, appellant Hung Le
pleaded guilty to the offense of aggravated assault on a public servant. See TEX.
PENAL CODE §§ 22.01, 22.02. After a presentence investigation, the trial court
found appellant guilty and sentenced him to life in prison. Appellant’s original
appointed counsel on appeal filed a motion to withdraw along with a brief that
purported to be an Anders brief, but which did not show that the attorney had
conducted an adequate professional evaluation of the record.After an abatement and hearing in the trial court, new appellate counsel was
appointed. A second Anders brief and motion to withdraw were filed. In the new
brief, counsel states that the record presented no reversible error, and therefore the
appeal is without merit and frivolous. Counsel indicates that he has reviewed the
record thoroughly and that he is unable to advance any grounds of error that
warrant reversal. See Anders, 386 U.S. at 744, 87 S. Ct. at 1400. The State waived
its right to file briefs. Appellant filed a pro se response, which we have reviewed.
Counsel’s brief meets the Anders requirements by presenting a professional
evaluation of the record and supplying this court with references to the record and
legal authority. See id. at 745, 87 S. Ct. at 1400; see also High v. State, 573 S.W.2d
807, 812 (Tex. Crim. App. 1978). The Anders brief notes that issues were raised in
the trial court as to appellant’s competency to stand trial, and it also considers the
potential issue of appellant’s competency to plead guilty. The brief identifies a
potential issue of ineffective assistance of counsel in failing to preserve error with
respect to the denial of a motion for expert assistance relating to appellant’s history
3

of epilepsy. The brief also notes that the motion failed to include information that
would have been necessary to justify granting the request for expert assistance.
However, no motion for new trial was filed, and appointed counsel concludes that
the record as it exists does not support reversal for ineffective assistance of counsel
on direct appeal.
We have independently reviewed the entire record in this appeal. We
conclude that no reversible error exists in the record, there are no arguable grounds
for review, and thus the direct appeal is frivolous. See Anders, 386 U.S. at 744, 87
S. Ct. at 1400; Garner v. State, 300 S.W.3d 763, 767 (Tex. Crim. App. 2009).
Having reached this conclusion, our opinion does not address the merits of any
issues raised by appellant in his pro se response because doing so would deprive
him of “the meaningful assistance of counsel.” Bledsoe v. State, 178 S.W.3d 824,
827 (Tex. Crim. App. 2005).
Prior to the plea hearing, the State abandoned a deadly-weapon allegation,
and when the trial court pronounced judgment in open court, there was no mention
of a deadly-weapon finding. The certification of appellant’s right to appeal
indicated that this was not a plea bargain case and there was a right to appeal. After
the judgment, the trial court appointed appellate counsel. Nevertheless, the written
judgment included an affirmative deadly weapon finding and stated: “Appeal
waived. No permission to appeal granted. The Court finds Defendant used or
4

exhibited a deadly weapon, namely, a razor, during the commission of a felony
offense or during immediate flight therefrom or was a party to the offense and
knew that a deadly weapon would be used or exhibited.”
When there is a conflict between the oral pronouncement of sentence and the
written judgment, the oral pronouncement controls. Burt v. State, 445 S.W.3d 452,
757 (Tex. Crim. App. 2014). An appellate court has “the power to correct and
reform a trial court judgment ‘to make the record speak the truth when it has the
necessary data and information to do so, or make any appropriate order as the law
and nature of the case may require.’” Nolan v. State, 39 S.W.3d 697, 698 (Tex.
App.—Houston [1st Dist.] 2001, no pet.) (quoting Asberry v. State, 813 S.W.2d
526, 529 (Tex. App.—Dallas 1991, pet. ref’d)). Because the court made no deadly
weapon finding when pronouncing judgment and indicated at least three times that
appellant had the right to appeal, we modify the judgment, eliminating the deadly
weapon finding and the language quoted above.

Outcome: We affirm the judgment as modified, and we grant counsel’s motion to
withdraw.* Attorney Joseph W. Varela must
immediately send the required notice and file a copy of that notice with the Clerk. We dismiss any other pending motions as
moot.

Plaintiff's Experts:

Defendant's Experts:

Comments:



 
 
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