Opinion
No. 05-05-00218-CR
Opinion Filed May 15, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court No. 4, Dallas County, Texas, Trial Court Cause No. F03-57134-PK. Affirmed as Modified.
Before Justices MORRIS, BRIDGES, and FRANCIS.
MEMORANDUM OPINION
Brannon Lloyd Braggs entered an open guilty plea to the offense of robbery and pleas of true to two enhancement paragraphs. The trial court found the enhancement paragraphs true, deferred adjudication of appellant's guilt for robbery, and placed him on community supervision for ten years. As a condition of community supervision, appellant was placed in a substance abuse felony punishment facility (SAFPF) for drug treatment. During the term of community supervision, appellant was discharged from the SAFPF. The State filed a motion to proceed with adjudication of guilt alleging, as a sole violation, appellant's unsuccessful drug treatment. During the adjudication hearing, the trial court informed appellant that one of the enhancement paragraphs was invalid. The trial court informed appellant of the punishment range without the invalid enhancement paragraph and offered appellant the opportunity to withdraw his guilty plea. Appellant chose to proceed. Appellant entered oral and written pleas of true to the State's allegation in the motion to proceed. The trial court adjudicated appellant guilty and assessed punishment at five years in prison. On appeal, appellant's attorney filed a brief in which he concludes the appeal is wholly frivolous and without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738 (1967). The brief presents a professional evaluation of the record showing why, in effect, there are no arguable grounds to advance. See High v. State, 573 S.W.2d 807, 811 (Tex.Crim.App. [Panel Op.] 1978). Counsel delivered a copy of the brief to appellant. We advised appellant he has a right to file a pro se response. Appellant, however, did not file a pro se response. The record contains the trial court's findings, adopted by this Court, that the reporter's record from appellant's original plea hearing was lost, that appellant was not at fault, and that the parties could not agree upon a substitute record. The record also contains counsel's letter stating that appellant had no objection to proceeding with the appeal without the lost reporter's record. Appellant would be entitled to reversal of his conviction and a new trial if the lost record is necessary to resolve this appeal. Tex.R.App.P. 34.6(f)(3). However, because the lost record pertains to the underlying plea hearing, appeal of any issues arising from that record would be untimely. Manuel v. State, 994 S.W.2d 658, 661-62 (Tex.Crim.App. 1999). Therefore, we conclude the reporter's record from the original plea hearing is not necessary to resolve this appeal. See Daniels v. State, 30 S.W.3d 407, 408 (Tex.Crim.App. 2000) (holding lost reporter's record from underlying deferred adjudication proceeding was not necessary to resolve appeal arising after adjudication of guilt). We have reviewed the record and counsel's brief. We agree the appeal is frivolous and without merit. We find nothing in the record that might arguably support the appeal. Although there are no arguable issues for appeal, the judgment adjudicating guilt does contain two clerical errors. The record shows appellant entered pleas of true to the enhancement paragraphs. The trial court found one enhancement paragraph true and the other invalid. The record does not reflect which of the two enhancement paragraphs the trial court found to be invalid. However, the sections of the judgment memorializing the plea and findings on the enhancement paragraphs reflect the notation "N/A." We have the authority to modify incorrect judgments when the necessary information is available to do so. See Tex.R.App.P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex.Crim.App. 1993); Asberry v. State, 813 S.W.2d 526, 529 (Tex.App.-Dallas 1991, pet. ref'd). Accordingly, to correct the judgment's clerical errors, we make the following modifications to the trial court's November 24, 2004 judgment adjudicating guilt: (1) in the "plea to enhancement paragraph(s)" section, we substitute the word "true" for the notation "N/A;" and (2) in the "findings on enhancement" section, we substitute the phrase "true on one paragraph" for the notation "N/A." As modified herein, we affirm the trial court's judgment.