Opinion
09-21-00202-CR
02-09-2022
KEVIN WESLEY KIRKLAND, Appellant v. THE STATE OF TEXAS, Appellee
Do Not Publish
Submitted on January 27, 2022
On Appeal from the 75th District Court Liberty County, Texas Trial Cause No. CR34378
Before Golemon, C.J., Kreger and Johnson, JJ.
MEMORANDUM OPINION
W. SCOTT GOLEMON, CHIEF JUSTICE
Pursuant to a plea bargain agreement, appellant Kevin Wesley Kirkland pleaded guilty to possession of a controlled substance, a third-degree felony. See Tex. Health & Safety Code Ann. § 481.115(c). The trial court found the evidence sufficient to find Kirkland guilty of possession of a controlled substance, but deferred further proceedings, placed Kirkland on community supervision for five years, assessed a $1000 fine, and ordered restitution of $180.
Subsequently, the State filed a motion to revoke Kirkland's unadjudicated community supervision. Kirkland pleaded "true" to violating eleven terms of the community supervision order. After conducting an evidentiary hearing, the trial court found that Kirkland violated the terms of his community supervision, revoked Kirkland's community supervision, found Kirkland guilty of possession of a controlled substance, and imposed a sentence of four years of confinement.
Kirkland's appellate counsel filed an Anders brief that presents counsel's professional evaluation of the record and concludes that the appeal is frivolous. See Anders v. California, 386 U.S. 738 (1967); High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978). On September 23, 2021, we notified Kirkland his pro se brief was due November 22, 2021. We received no response from Kirkland.
We reviewed the appellate record, and we agree with counsel's conclusion that no arguable issues support the appeal. Therefore, we find it unnecessary to order appointment of new counsel to re-brief the appeal. Cf. Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991). However, in reviewing the record, we observed that inconsistent with the oral pronouncement, the written judgment contains the wrong statutory provision and felony classification. See Bray v. State, 179 S.W.3d 725, 726 (Tex. App.-Fort Worth 2005, no pet.) (holding that an appellate court has the authority to modify the judgment in an Anders case and to affirm the judgment as modified). Accordingly, we modify the judgment to delete "481.112(c)" and replace it with "481.115(c)." For the degree of offense, we delete "2nd Degree Felony" and replace it with "3rd Degree Felony." We affirm the trial court's judgment as modified.
Kirkland may challenge our decision in this case by filing a petition for discretionary review. See Tex. R. App. P. 68.
AFFIRMED AS MODIFIED.