Andre Nigel Bennett v. State

• Court: Court of Appeals of Texas
• Decided: April 9, 2015
• Docket: 14-14-00474-CR
• Status: Published

Opinion

Affirmed as Reformed and Memorandum Opinion filed April 9, 2015

In The

Fourteenth Court of Appeals

NO. 14-14-00474-CR

ANDRE NIGEL BENNETT, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 174th District Court Harris County, Texas Trial Court Cause No. 1357744

MEMORANDUM OPINION

A jury convicted appellant Andre Nigel Bennett of third degree felony theft in an amount greater than $1,500 but less than $20,000. On April 24, 2014, the trial court sentenced appellant to confinement for fifteen years in the Institutional Division of the Texas Department of Criminal Justice. Appellant filed a notice of appeal. Appellant’s appointed counsel filed a brief in which he concludes the appeal is wholly frivolous and without merit. The brief meets the requirement of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 (1967), by advancing frivolous contentions which arguably might support the appeal. See Currie v. State, 516 S.W.2d 684 (Tex. Crim. App. 1974); Jackson v. State, 485 S.W.2d 553 (Tex. Crim. App. 1972); Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969).

A copy of counsel’s brief was delivered to appellant. Appellant was advised of the right to examine the appellate record and file a pro se response. See Stafford v. State, 813 S.W.2d 503, 510 (Tex. (Tex. Crim. App. 1991). See also Kelly v. State, 436 S.W.3d 313 (Tex. Crim. App. 2014). As of this date, appellant has not requested access to the appellate record.

The judgment reflects that appellant was convicted of theft in an amount greater than $20,000 but less than $100,000. However the record reflects the jury convicted appellant of the lesser-included offense of theft in an amount greater than $1,500 but less than $20,000. Accordingly, we reform the trial court’s judgment to reflect appellant was convicted of theft in an amount greater than $1,500 but less than $20,000. See French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992) (stating appellate court has authority to reform a judgment to “speak the truth”). In an appeal in which counsel has filed an Anders brief, we are not required to abate the appeal for appointment of new counsel if the judgment may be reformed. See Ferguson v. State, 435 S.W.3d 291, 295 (Tex.App.—Waco 2014, no pet.) (reforming judgment in Anders appeal to correct age of child victim); Bray v. State, 179 S.W.3d 725, 730 (Tex.App.—Fort Worth 2005, no pet.) (reforming judgment in Anders appeal to delete improper condition of parole); see also Getts v. State, 155 S.W.3d 153, 155 (Tex. Crim. App. 2005) (affirming court of appeals’ judgment reforming the judgment of conviction in Anders appeal).

2 We have carefully reviewed the record and counsel’s brief and agree the appeal is wholly frivolous and without merit. Further, we find no reversible error in the record. We are not to address the merits of each claim raised in an Anders brief or a pro se response when we have determined there are no arguable grounds for review. See Bledsoe v. State, 178 S.W.3d 824, 827–28 (Tex. Crim. App. 2005).

Accordingly, we affirm the judgment of the trial court as reformed.

PER CURIAM

Panel consists of Justices Jamison, Busby and Brown.

Do Not Publish — Tex. R. App. P. 47.2(b).