Opinion
No. 05-15-00709-CR
04-05-2016
MICHAEL DWAYNE THOMPSON, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 194th Judicial District Court Dallas County, Texas
Trial Court Cause No. F14-60066-M
MEMORANDUM OPINION
Before Justices Lang, Brown, and Whitehill
Opinion by Justice Whitehill
Michael Dwayne Thompson pleaded guilty before a jury to burglary of a vehicle, having two prior convictions for burglary of a vehicle. See TEX. PENAL CODE ANN. § 30.04(a), (d)(2)(A) (West 2011). The jury found appellant guilty, as instructed, and the case proceeded to the punishment phase. Appellant pleaded true to two enhancement paragraphs alleging prior state jail felony convictions. The jury found the enhancement paragraphs true and assessed punishment at ten years' imprisonment. See TEX. PENAL CODE ANN. § 12.425(a), 30.04(d)(2)(A) (West 2011 & Supp. 2015). On appeal, appellant's attorney filed a brief in which she 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, 811-12 (Tex. Crim. App. [Panel Op.] 1978). Counsel delivered a copy of the brief to appellant. See Kelly v. State, 436 S.W.3d 313, 319-21 (Tex. Crim. App. 2014) (identifying duties of appellate courts and counsel in Anders cases).
Appellant filed a pro se response raising several issues After reviewing counsel's brief, appellant's pro se response, and the record, we agree the appeal is frivolous and without merit. See Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005) (explaining appellate court's duty in Anders cases). We find nothing in the record that might arguably support the appeal.
Although not an arguable issue, we note the trial court's judgment incorrectly states the degree of the offense as "3rd degree felony." Appellant pleaded guilty to and was convicted of burglary of a vehicle, having two prior convictions for burglary of vehicle, a state jail felony offense. TEX. PENAL CODE ANN. § 30.04(d)(2). The enhancement paragraphs alleging two prior convictions for state jail felony offenses raised the punishment range to that of a third-degree felony. See TEX. PENAL CODE ANN. § 12.425(a). They did not, however, convert the state jail burglary offense for which appellant was convicted to a third-degree felony. Accordingly, we modify the judgment to show the degree of offense is "state jail felony." 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, 529-30 (Tex. App.—Dallas 1991, pet. ref'd).
As modified, we affirm the trial court's judgment.
/Bill Whitehill/
BILL WHITEHILL
JUSTICE Do Not Publish
TEX. R. APP. P. 47
150709F.U05
JUDGMENT
Appeal from the 194th Judicial District Court of Dallas County, Texas (Tr.Ct.No. F14-60066-M).
Opinion delivered by Justice Whitehill, Justices Lang and Brown participating.
Based on the Court's opinion of this date, the trial court's judgment is MODIFIED as follows:
The section entitled "Degree of Offense" is modified to show "State Jail Felony."
As modified, we AFFIRM the trial court's judgment.
Judgment entered April 5, 2016.