Opinion
No. 05-03-01563-CR
Opinion Filed May 4, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court, No. 2, Dallas County, Texas, Trial Court Cause No. F02-35678-MI. Affirmed As Modified.
Before Justices MORRIS, LANG, and MAZZANT.
MEMORANDUM OPINION
Leroy McCullough appeals his conviction for delivery of cocaine in an amount of one gram or more, but less than four grams. Punishment was assessed at twenty years confinement. 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. However, appellant did not file a pro se response. 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 not grounds for a meritorious appeal, we observe that the trial court's judgment reflects appellant entered a plea of true to the second enhancement paragraph and the second enhancement paragraph was found true. The indictment returned against appellant reflects a second paragraph alleging a prior conviction for forgery and a third paragraph alleging a prior conviction for burglary of a building. Before trial, appellant and the State agreed that in exchange for appellant's guilty plea, plea of true to the burglary enhancement paragraph, and stipulation regarding his numerous prior convictions, the State would dismiss the forgery enhancement paragraph. Appellant entered a guilty plea and a plea of true to the burglary enhancement paragraph. The indictment, however, was never formally amended to strike the forgery paragraph. Thus, the record reflects appellant entered a plea of true to the third paragraph of the indictment. 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). Because the necessary information is available, we modify the trial court's September 30, 2003 judgment by substituting the phrase "3rd" for the phrase "2nd" in the sections styled "PLEA TO ENHANCEMENT PARAGRAPH(S)" and "FINDINGS ON ENHANCEMENT." As modified, we affirm the trial court's judgment.