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Brooks v. State

Court of Appeals of Texas, Ninth District, Beaumont
Jun 11, 2008
No. 09-07-475 CR (Tex. App. Jun. 11, 2008)

Opinion

No. 09-07-475 CR

Submitted on May 28, 2008.

Opinion Delivered June 11, 2008. DO NOT PUBLISH

On Appeal from the Criminal District Court Jefferson County, Texas, Trial Cause No. 82666.

Before McKEITHEN, C.J., KREGER and HORTON, JJ.


MEMORANDUM OPINION


Pursuant to a plea bargain agreement, appellant Don Lionell Brooks, Jr. a/k/a Don Lionell Brooks pled guilty to possession of a controlled substance. On January 24, 2002, the trial court found the evidence sufficient to find Brooks guilty, but deferred further proceedings, placed Brooks on community supervision for ten years, and assessed a fine of $1,000. On March 22, 2007, the State filed a motion to revoke Brooks's unadjudicated community supervision. Brooks pled "true" to two violations of the conditions of his community supervision. The trial court found that Brooks violated the conditions of his community supervision, found Brooks guilty of possession of a controlled substance, and assessed punishment at five years of confinement. Brooks's appellate counsel filed a brief that presents counsel's professional evaluation of the record and concludes the appeal is frivolous. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); High v. State, 573 S.W.2d 807 (Tex.Crim.App. 1978). On January 24, 2008, we granted an extension of time for appellant to file a pro se brief. We received no response from appellant. We reviewed the appellate record, and we agree with counsel's conclusion that no arguable issues support an appeal. In our review of the record, we noted that the trial court's judgment incorrectly recites that the statute under which Brooks was charged was section 481.115 of the Health and Safety Code. See Tex. Health Safety Code Ann. § 481.115 (Vernon 2003). The amended indictment reflects Brooks was charged with possession of a controlled substance in penalty group four in an amount greater than four hundred grams. The charged offense is a first-degree felony which carries a punishment range of five to ninety-nine years or life imprisonment and a fine of not more than $50,000 under section 481.118(e) of the Health and Safety Code. See Tex. Health Safety Code Ann. § 481.118(e) (Vernon 2003). This Court has the authority to reform the trial court's judgment to correct a clerical error. See Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27 (Tex.Crim.App. 1993); Asberry v. State, 813 S.W.2d 526, 531 (Tex.App.-Dallas 1991, pet. ref'd). Therefore, we modify the trial court's judgment to read that Brooks was convicted under section 481.118(e) of the Health and Safety Code. We find it unnecessary to order appointment of new counsel to re-brief the appeal. Compare Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim.App. 1991). We affirm the trial court's judgment as reformed. AFFIRMED AS REFORMED.

The indictment originally charged Brooks with possession of a controlled substance in penalty group one in an amount greater than four hundred grams. After the State filed a motion to amend the indictment, the trial court amended the indictment to charge Brooks with possession of a controlled substance in penalty group four in an amount greater than four hundred grams.

Appellant may challenge our decision in this case by filing a petition for discretionary review. See Tex. R. App. P. 68.


Summaries of

Brooks v. State

Court of Appeals of Texas, Ninth District, Beaumont
Jun 11, 2008
No. 09-07-475 CR (Tex. App. Jun. 11, 2008)
Case details for

Brooks v. State

Case Details

Full title:DON LIONELL BROOKS, JR. A/K/A DON LIONELL BROOKS, Appellant v. THE STATE…

Court:Court of Appeals of Texas, Ninth District, Beaumont

Date published: Jun 11, 2008

Citations

No. 09-07-475 CR (Tex. App. Jun. 11, 2008)