Clifford Earl Booker v. State

Opinion

Affirmed as Modified and Opinion Filed September 29, 2015

In The

Court of Appeals

Fifth District of Texas at Dallas No. 05-14-01170-CR

CLIFFORD EARL BOOKER, Appellant V.

THE STATE OF TEXAS, Appellee

On Appeal from the 194th Judicial District Court Dallas County, Texas

Trial Court Cause No. F13-63134-M

MEMORANDUM OPINION

Before Justices Bridges, Francis, and Myers Opinion by Justice Bridges

Clifford Earl Booker waived a jury and pleaded guilty to burglary of a vehicle, with two prior burglary of a vehicle convictions, and pleaded true to two enhancement programs. See TEX. PENAL CODE ANN. § 30.04(a), (d)(2)(A) (West 2011). The trial court deferred adjudicating guilt, placed appellant on eight years’ community supervision, and assessed a $750 fine. 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. We advised appellant of his right to file a pro se response, but he did not file a pro se response. 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).

We have reviewed the record and counsel’s brief. See Bledsoe v. State, 178 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. We find nothing in the record that might arguably support the appeal.

Although not an arguable issue, we note the order deferring adjudication of guilt incorrectly reflects there was a plea bargain agreement, when, in fact, appellant entered an open guilty plea. Accordingly, we modify the section of the order deferring adjudication of guilt entitled “terms of plea bargain” to state “open.” 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 order deferring adjudication of guilt.

Do Not Publish TEX. R. APP. P. 47 141170F.U05

/David L. Bridges/

DAVID L. BRIDGES

JUSTICE

3

Court of Appeals

Fifth District of Texas at Dallas

JUDGMENT

CLIFFORD EARL BOOKER, Appellant Appeal from the 194th Judicial District Court of Dallas County, Texas (Tr.Ct.No.

No. 05-14-01170-CR V. F13-63134-M).

Opinion delivered by Justice Bridges, THE STATE OF TEXAS, Appellee Justices Francis and Myers participating.

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

The section entitled “Terms of Plea Bargain” is modified to show “Open.”

As modified, we AFFIRM the trial court’s order of deferred adjudication.

Judgment entered September 29, 2015.