Brian Sylvester Diggs v. the State of Texas

Opinion

Modified and Affirmed and Opinion Filed December 14, 2022

In The Court of Appeals Fifth District of Texas at Dallas No. 05-21-00961-CR No. 05-21-00962-CR

BRIAN SYLVESTER DIGGS, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 194th Judicial District Court Dallas County, Texas Trial Court Cause No. F20-52897-M & F20-52898-M

MEMORANDUM OPINION Before Justices Myers, Pedersen, III, and Garcia Opinion by Justice Myers Appellant Brian Sylvester Diggs entered negotiated pleas of guilty and

judicial confessions in two cases: (1) possession with intent to deliver

methamphetamine in an amount of four grams or more but less than 200 grams in

cause number 05-21-00961-CR; and (2) possession of heroin in an amount less than

one gram in cause number 05-21-00962-CR. The court accepted the pleas and, in

accordance with the terms of the respective plea agreements, placed appellant on

five years of deferred adjudication probation in each case. Appellant subsequently

entered pleas of true to allegations in the State’s motions to adjudicate in the two cases. The court adjudicated appellant guilty and revoked his probation in the two

cases. In cause 05-21-00961-CR, the court sentenced appellant to fifteen years of

confinement in the Institutional Division of the Texas Department of Criminal

Justice (TDCJ), and in cause 05-21-00962-CR, the court sentenced appellant to one

year in the State Jail Division of the TDCJ.

Appellant’s counsel has filed a motion to withdraw. The motion is supported

by a brief in which counsel professionally and conscientiously examines the record

and applicable law and concludes this appeal is frivolous and without merit.

Counsel certifies that he provided appellant with a copy of the brief and the

motion to withdraw. 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, 812–13 (Tex. Crim. App. [Panel Op.] 1978) (determining whether brief

meets requirements of Anders); see also Arevalos v. State, 606 S.W.3d 912, 915–16

(Tex. App.—Dallas 2020, no pet.) (citing High and concluding Anders brief in

support of motion to withdraw did not meet requirements of Anders and was

deficient as to form). We advised appellant by letter of his right to file a pro se

response, but he has not filed a pro se response. See Kelly v. State, 436 S.W.3d 313,

319–21 (Tex. Crim. App. 2014) (appellant has right to file pro se response to Anders

brief filed by counsel).

We have reviewed the record and counsel’s brief. See Bledsoe v. State, 178

–2– S.W.3d 824, 826–27 (Tex. Crim. App. 2005) (explaining appellate court’s duty in

Anders cases). We agree the appeal is frivolous and without merit, and we find

nothing in the record that might arguably support the appeal.

Although not arguable issues, we note one clerical error in the judgment in

cause 05-21-00962-CR, and a separate clerical error in each of the judgments.

Appellant was convicted of the state jail felony offense of possession of less than

one gram of heroin under section 481.115(b). See TEX. HEALTH & SAFETY CODE §

481.115(b). But the written judgment in 00962-CR incorrectly states that the

applicable statute is section 481.115(c). In addition, the judgments in each of the

cases state that the attorney for the State was Thelma Anderson, while the reporter’s

record shows the attorney for the State to be Amy Lockhart.

When the record provides the necessary information to correct inaccuracies in

the trial court’s judgment, we have the authority to reform the judgment to speak the

truth. 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). Accordingly, we modify the judgment in 05-21-00962-CR to reflect that

appellant was convicted of the state jail felony offense of possession of less than one

gram of heroin under section 481.115(b), and we further modify each judgment to

reflect that the attorney for the State was Amy Lockhart.

–3– We grant counsel’s motion to withdraw and, as modified, affirm the

judgment.

/Lana Myers// LANA MYERS JUSTICE

210961f.u05 210962f.u05 Do Not Publish TEX. R. APP. P. 47.2(b)

–4– Court of Appeals Fifth District of Texas at Dallas JUDGMENT

BRIAN SYLVESTER DIGGS, On Appeal from the 194th Judicial Appellant District Court, Dallas County, Texas Trial Court Cause No. F20-52897-M. No. 05-21-00961-CR V. Opinion delivered by Justice Myers. Justices Pedersen, III and Garcia THE STATE OF TEXAS, Appellee participating.

Based on the Court’s opinion of this date, the judgment of the trial court is

MODIFIED as follows:

The portion of the judgment entitled “Attorney for State” is changed to “Amy Lockhart SBOT 24056758.

As REFORMED, the judgment is AFFIRMED. The trial court is directed to

prepare a corrected judgment that reflects the modifications made in this Court’s

opinion and judgment in this case.

Judgment entered this 14th day of December, 2022.

–5– Court of Appeals Fifth District of Texas at Dallas JUDGMENT

BRIAN SYLVESTER DIGGS, On Appeal from the 194th Judicial Appellant District Court, Dallas County, Texas Trial Court Cause No. F20-52898-M. No. 05-21-00962-CR V. Opinion delivered by Justice Myers. Justices Pedersen, III and Garcia THE STATE OF TEXAS, Appellee participating.

Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED as follows:

The portion of the judgment entitled “Statute for Offense” is changed to “481.115(b) Health and Safety Code.”

The portion of the judgment entitled “Attorney for State” is changed to “Amy Lockhart SBOT 24056758

As REFORMED, the judgment is AFFIRMED. The trial court is directed to

prepare a corrected judgment that reflects the modifications made in this Court’s

opinion and judgment in this case.

Judgment entered this 14th day of December, 2022.

–6–