Antoine Jerome Thompson v. the State of Texas

Opinion

NUMBER 13-20-00447-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

ANTOINE JEROME THOMPSON, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 19th District Court of McLennan County, Texas.

MEMORANDUM OPINION Before Chief Justice Contreras and Justices Longoria and Tijerina Memorandum Opinion by Justice Tijerina

Appellant Antoine Jerome Thompson pleaded guilty to possession of a controlled

substance with intent to deliver, methamphetamine, in an amount of four grams or more

but less than 200 grams, a first-degree felony, and he was sentenced to twelve years’

imprisonment. See TEX. HEALTH & SAFETY CODE ANN. § 481.112. Appellant’s court-

appointed counsel has filed an Anders brief stating that there are no arguable grounds for appeal. See Anders v. California, 386 U.S. 738, 744 (1967). We affirm the trial court’s

judgment as modified.1

I. ANDERS BRIEF

Pursuant to Anders v. California, appellant’s court-appointed appellate counsel

filed a brief and a motion to withdraw with this Court, stating that his review of the record

yielded no grounds of reversible error upon which an appeal could be predicated. See id.

Counsel’s brief meets the requirements of Anders as it presents a professional evaluation

demonstrating why there are no arguable grounds to advance on appeal. See In re

Schulman, 252 S.W.3d 403, 406 n.9 (Tex. Crim. App. 2008) (orig. proceeding) (“In Texas,

an Anders brief need not specifically advance ‘arguable’ points of error if counsel finds

none, but it must provide record references to the facts and procedural history and set

out pertinent legal authorities.” (citing Hawkins v. State, 112 S.W.3d 340, 343–44 (Tex.

App.—Corpus Christi–Edinburg 2003, no pet.))); Stafford v. State, 813 S.W.2d 503, 510

n.3 (Tex. Crim. App. 1991).

In compliance with High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel

Op.] 1978) and Kelly v. State, 436 S.W.3d 313, 319–22 (Tex. Crim. App. 2014),

appellant’s counsel carefully discussed why, under controlling authority, there is no

reversible error in the trial court’s judgment. Appellant’s counsel also informed this Court

in writing that he: (1) notified appellant that counsel has filed an Anders brief and a motion

1This case is before this Court on transfer from the Tenth Court of Appeals in Waco pursuant to a docket-equalization order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. § 73.001.

2 to withdraw; (2) provided appellant with copies of both pleadings; (3) informed appellant

of his rights to file a pro se response, to review the record prior to filing that response,

and to seek discretionary review if we conclude that the appeal is frivolous; and (4)

provided appellant with a form motion for pro se access to the appellate record that only

requires appellant’s signature and date with instructions to file the motion within ten days.

See Anders, 386 U.S. at 744; Kelly, 436 S.W.3d at 319–20; see also In re Schulman, 252

S.W.3d at 408–09. In this case, appellant filed a motion requesting an extension of time

to file his pro se response, which was granted on March 17, 2021. An adequate amount

of time has passed, and appellant has not filed a pro se response.

II. INDEPENDENT REVIEW & MODIFICATION

Upon receiving an Anders brief, we must conduct a full examination of all the

proceedings to determine whether the case is wholly frivolous. Penson v. Ohio, 488 U.S.

75, 80 (1988). We have reviewed the record and counsel’s brief, and we have found

nothing that would arguably support an appeal. See Bledsoe v. State, 178 S.W.3d 824,

827–28 (Tex. Crim. App. 2005) (“Due to the nature of Anders briefs, by indicating in the

opinion that it considered the issues raised in the briefs and reviewed the record for

reversible error but found none, the court of appeals met the requirements of Texas Rule

of Appellate Procedure 47.1.”); Stafford, 813 S.W.2d at 511.

However, as appellant’s counsel notes in his brief, the “Statute for Offense” section

of the trial court’s judgment incorrectly lists § 481.112 Texas Penal Code as the statute

under which appellant was convicted. We may modify incorrect judgments to make the

3 record “speak the truth” when we have the necessary data and information. See TEX. R.

APP. 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). A conviction for

possession of a controlled substance with intent to deliver, methamphetamine, in an

amount of four grams or more but less than 200 grams is punishable under § 481.112 of

the health and safety code. See TEX. HEALTH & SAFETY CODE ANN. § 481.112. Accordingly,

we modify the judgment to replace “Texas Penal Code” with “Health and Safety Code”

under the “Statute for Offense” section of the trial court’s judgment. See TEX. R. APP. P.

43.2(b); Bigley, 865 S.W.2d at 27–28; Asberry, 813 S.W.2d at 529–30.

III. MOTION TO WITHDRAW

In accordance with Anders, appellant’s counsel has asked this Court for

permission to withdraw as counsel. See Anders, 386 U.S. at 744; see also In re

Schulman, 252 S.W.3d at 408 n.17. We grant counsel’s motion to withdraw. Within five

days from the date of this Court’s opinion, counsel is ordered to send a copy of this opinion

and this Court’s judgment to appellant and to advise him of his right to file a petition for

discretionary review.2 See TEX. R. APP. P. 48.4; see also In re Schulman, 252 S.W.3d at

412 n.35; Ex parte Owens, 206 S.W.3d 670, 673 (Tex. Crim. App. 2006).

2 No substitute counsel will be appointed. Should appellant wish to seek further review of this case by the Texas Court of Criminal Appeals, he must either retain an attorney to file a petition for discretionary review or file a pro se petition for discretionary review. Any petition for discretionary review must be filed within thirty days from the date of either this opinion or the last timely motion for rehearing or timely motion for en banc reconsideration that was overruled by this Court. See TEX. R. APP. P. 68.2. Any petition for discretionary review must be filed with the Clerk of the Texas Court of Criminal Appeals. See id. R. 68.3. Any petition for discretionary review should comply with the requirements of Texas Rule of Appellate Procedure 68.4. See id. R. 68.4.

4 IV. CONCLUSION

We affirm the trial court’s judgment as modified herein.

JAIME TIJERINA Justice

Do not publish. TEX. R. APP. P. 47.2(b).

Delivered and filed on the 25th day of August, 2022.