Arthur Earl Lewis v. State

• Court: Court of Appeals of Texas
• Decided: June 7, 2010
• Docket: 06-09-00175-CR
• Status: Published

Opinion

                                                         In The

                                                Court of Appeals

                        Sixth Appellate District of Texas at Texarkana

                                                ______________________________

                                                             No. 06-09-00175-CR

                                    ARTHUR EARL LEWIS, Appellant

                                                                V.

                                     THE STATE OF TEXAS, Appellee

                                       On Appeal from the 336th Judicial District Court

                                                             Fannin County, Texas

                                                            Trial Court No. 22334

                                          Before Morriss, C.J., Carter and Moseley, JJ.

                                        Memorandum Opinion by Chief Justice Morriss

                                                      MEMORANDUM OPINION

            Arthur Earl Lewis appeals from the revocation of his community supervision for the underlying conviction of driving while intoxicated with a child passenger.  Tex. Penal Code Ann. § 49.045 (Vernon Supp. 2009).  Lewis’ sentence was enhanced by two prior felonies, to which he pled “true,” and he was sentenced to eight years’ imprisonment and a $1,500.00 fine.  He was represented by appointed counsel at trial and on appeal.

            Lewis’ attorney has filed a brief which discusses the record and reviews the proceedings.  Counsel has thus provided a professional evaluation of the record demonstrating why, in effect, there are no arguable grounds to be advanced.  This meets the requirements of Anders v. California, 386 U.S. 738 (1967); Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1981); and High v. State, 573 S.W.2d 807 (Tex. Crim. App. [Panel Op.] 1978).

            Counsel mailed a copy of the brief to Lewis January 6, 2010, informing Lewis of his right to file a pro se response and of his right to review the record.  Counsel has also filed a motion with this Court seeking to withdraw as counsel in this appeal.  Lewis has neither filed a pro se response, nor has he requested an extension of time in which to file such response.

            We have determined that this appeal is wholly frivolous.  We have independently reviewed the clerk’s record and the reporter’s record, and we agree that no arguable issues support an appeal.  See Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim. App. 2005). 

            We do note, however, that the trial court’s judgment in this case indicates the degree of the offense is a second-degree felony.  The offense is a state-jail felony.  See Tex. Penal Code Ann. § 49.045.  The punishment range was correctly enhanced to that of a second-degree felony.  See Tex. Penal Code Ann. § 12.42(a)(3) (Vernon Supp. 2009).  This Court has the authority to modify the judgment to make the record speak the truth when the matter has been called to our attention by any source.  French v. State, 830 S.W.2d 607 (Tex. Crim. App. 1992).  In Asberry v. State, 813 S.W.2d 526 (Tex. App.—Dallas 1991, pet. ref’d), the court noted that the authority of the appellate court to modify incorrect judgments is not dependent on request of any party; the appellate court may act sua sponte.  Rule 43.2 of the Texas Rules of Appellate Procedure provides direct authority for this Court to modify the judgment of the trial court.  Tex. R. App. P. 43.2.  We modify the judgment to reflect the correct degree of offense as that of a state-jail felony.

            In a frivolous appeal situation, we are to determine whether the appeal is without merit and is frivolous, and if so, the appeal must be dismissed or affirmed.  See Anders, 386 U.S. 738.

            As modified, the judgment of the trial court is affirmed.^[1]

                                                                                   Josh R. Morriss, III

                                                                                    Chief Justice

Date Submitted:          June 4, 2010   

Date Decided:             June 7, 2010

Do Not Publish          

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^[1]Since we agree this case presents no reversible error, we also, in accordance with Anders, grant counsel’s request to withdraw from further representation of Lewis in this case.  No substitute counsel will be appointed.  Should Lewis wish to seek further review of this case by the Texas Court of Criminal Appeals, Lewis must either retain an attorney to file a petition for discretionary review or Lewis must 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 that was overruled by this Court.  See Tex. R. App. P. 68.2.  Any petition for discretionary review must be filed with this Court, after which it will be forwarded to the Texas Court of Criminal Appeals along with the rest of the filings in this case.  See Tex. R. App. P. 68.3.  Any petition for discretionary review should comply with the requirements of Rule 68.4 of the Texas Rules of Appellate Procedure.  See Tex. R. App. P. 68.4.