Daniel Joseph Shaw v. State

Opinion

MODIFY and AFFIRM; and Opinion Filed November 1, 2018.

In The Court of Appeals Fifth District of Texas at Dallas No. 05-18-00339-CR

DANIEL JOSEPH SHAW, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 291st Judicial District Court Dallas County, Texas Trial Court Cause No. F17-25541-U

MEMORANDUM OPINION Before Justices Stoddart, Whitehill, and Boatright Opinion by Justice Boatright Appellant Daniel Joseph Shaw waived a jury trial and pleaded guilty to possession of

heroin in an amount of one gram or more but less than four grams. Appellant also pleaded true to

one enhancement paragraph contained in the indictment. After finding appellant guilty and the

enhancement paragraph true, the trial court assessed punishment at two years’ imprisonment.

On appeal, appellant’s attorney filed a brief in which he 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, 812 (Tex. Crim. App.

[Panel Op.] 1978) (determining whether brief meets requirements of Anders). 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)

(noting 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 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 trial court’s judgment incorrectly recites the

plea to the enhancement paragraph and the finding on that paragraph as “N/A.” The record shows

appellant entered a plea of true to the enhancement paragraph and the trial court found the

enhancement paragraph true. On our own motion, we modify the section of the judgment entitled

“plea to 1st enhancement paragraph” to show “true,” and the section entitled “findings on 1st

enhancement paragraph” to show “true.” See TEX. R. APP. P. 43.2(b) (allowing courts of appeals to

modify judgments); Asberry v. State, 813 S.W.2d 526, 529–30 (Tex. App.—Dallas 1991, pet. ref'd)

(explaining that courts of appeals may modify incorrect judgments without the request of any party).

As modified, we affirm the trial court’s judgment.

/Jason Boatright/ JASON BOATRIGHT JUSTICE

Do Not Publish TEX. R. APP. P. 47

180339F.U05

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

DANIEL JOSEPH SHAW, Appellant On Appeal from the 291st Judicial District Court, Dallas County, Texas No. 05-18-00339-CR V. Trial Court Cause No. F17-25541-U. Opinion delivered by Justice Boatright. THE STATE OF TEXAS, Appellee Justices Stoddart and Whitehill participating.

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

The section entitled “Plea to 1st Enhancement Paragraph” is modified to show “True.”

The section entitled “Findings on 1st Enhancement Paragraph” is modified to show “True.”

Judgment entered this 1st day of November, 2018.

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