## NO. 12

- 17

- 00063

- CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

STEVE N EDWARD RADZIKOWSKI, APPELLANT

V.
THE STATE OF TEXAS, APPELLEE §

§

§ APPEAL FROM THE 87TH

JUDICIAL DISTRICT COURT

ANDERSON COUNTY, TEX AS

MEMORANDUM OPINION PER CURIAM Steven Edward Radzikowski appeals his conviction for aggravated assault with a deadly weapon. Appellant’s counsel filed a brief in compliance with Anders v. California , 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967) and Gainous v. State , 436 S.W.2d 137 (Tex. Crim. App. 1969). We modify and affirm as modified.

B ACKGROUND Appellant was charged by indictment with aggravated assault with a deadly weapo n and pleaded “not guilty.” Appellant was found “guilty” by a jury of aggravated assault with a deadly weapon as charged in the indictment. Appellant pleaded “true” to one felony enhancement allegation, and the jury assessed his punishment at imprisonmen t for seventeen years and a $10,000 fine. This appeal followed.

A NALYSIS P URSUANT TO A NDERS V

. C ALIFORNIA
. Appellant’s counsel filed a brief in compliance with Anders v. California and Gainous v.
State

. Appellant’s counsel states that he diligently re viewed the appellate record and is of the opinion that the record reflects no reversible error and that there is no error upon which an appeal can be predicated. He further relates that he is well acquainted with the facts in this case. In2

compliance with Anders
, Gainous , and High v. State , 573 S.W.2d 807 (Tex. Crim. App. [Panel Op.] 1978), Appellant’s brief presents a chronological summation of the procedural history of the case and further states that Appellant’s counsel is unable to raise any arguable i ssues for appeal. 1
We have considered counsel’s brief and conducted our own independent review of the
record. Id. at 811. We have found no reversible error.

J UDGMENT M ODIFICATION In reviewing the record, we found an error in the written judgment. We have the authority to correct a trial court’s judgment to make the record speak the truth when we have the necessary
data and information. Asberry v. State , 813 S.W.2d 526, 529 (Tex. App.

— Dallas 1991, pet. ref’d). In this case, the judgment states, “Fine: $N/A.” However, the record indicates that the jury assessed a $10,000 fine and the trial court included the $10,000 fine in its oral pronouncement of sentence. Having the necessary data and information to correct the trial court’s judgment to make the record speak the truth, we conclude that the judgment should be modified to reflect that Appellant’s sentence includes a $10,000 fine. See Asberry , 813 S.W.2d at 529.

C ONCLUSION As required by Anders and Stafford v. State , 813 S.W.2d 503, 511 (Tex. Crim. App. 1991), Appellant’s counsel has moved for leave to withdraw. See also In re Schulman , 252 S.W.3d 403, 407 (Tex. Crim. App. 2008) (orig. proceeding). We carried the motion fo r consideration with the merits. Having done so, we agree with Appellant’s counsel that the appeal is wholly frivolous. Accordingly, we grant counsel’s motion for leave to withdraw. We modify the trial court’s judgment to include a $10,000 fine and affi rm the judgment as modified. Appellant’s counsel has a duty to, within five days of the date of this opinion, send a copy of the opinion and judgment to Appellant and advise him of his right to file a petition for discretionary review. See T EX

. R. A PP

. P

. 48.4; In re Schulman , 252 S.W.3d at 411 n.35. Should Appellant wish to seek review of these cases by the Texas Court of Criminal Appeals, he must

1 In compliance with Kelly v. State , Appellant’s counsel provided Appellant with a copy of the brief, notified Appellant of his motion to withdraw as counsel, informed Appellant of his right to file a pro se response, and took concrete measures to facilitate Appellant’s review of the appellate record. 436 S.W.3d 313, 319 (Tex. Crim. App. 2014). Appellant was given time to file his own brief. The time for filing such a brief has expired and no pro se brief has been filed.3

either retain an attorney to file a petition for discretionary review on his behalf or he must file a

pro se petition for discretionary review. Any petition for discretionary review must be filed within thirty days from the date of this court’s judgment or the date the last timely motion for rehearing was overruled by this court. See T EX

. R. A PP

. P. 68.2(a). Any petition for discretionary review must be filed with the Texas Court of Criminal Appeals. See T EX

. R. A PP

. P. 68.3(a). Any petition for discretionary review should comply with the requirements of Rule 68.4 of the Texas Rules of Appellate Procedure. S ee In re Schulman , 252 S.W.3d at 408 n.22. Opinion delivered September 19, 2018. Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

( DO NOT PUBLISH )

## COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

SEPTEMBER 19 , 2018

NO. 12

- 17

- 00063

- CR

STEVE N EDWARD RADZIKOWSKI,

Appellant V. THE STATE OF TEXAS, Appellee

Appeal from the 87th District Court
of Anderson County, Texas (Tr.Ct.No. 87CR

- 16

- 32859) THIS CAUSE came on to be heard on the appellate record and the briefs filed herein, and the same being inspected, it is the opinion of the Court that the judgment of the
trial court below should be modified and, a s modified, affirmed

.

It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be modified to reflect that Appellant’s sentence includes a $10,000 fine ; and
as modified , the trial court’s judgment is affirmed ; and that this decision be certified to the trial
court below for observance.

By per curiam opinion

. Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J.