Dillan Marion McCullers v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: August 22, 2024
• Docket: 03-23-00091-CR
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-23-00060-CR NO. 03-23-00091-CR

Dillan Marion McCullers, Appellant

v.

The State of Texas, Appellee

FROM THE 264TH DISTRICT COURT OF BELL COUNTY NOS. 80182 & 80183, THE HONORABLE PAUL L. LEPAK, JUDGE PRESIDING

MEMORANDUM OPINION

Appellant Dillan Marion McCullers pleaded guilty to sexual assault and

threatening to disclose intimate visual material. See Tex. Penal Code §§ 21.16(c)(1),

22.011(a)(1)(A). The trial court sentenced appellant to 5 years’ confinement and 20 months’

confinement, respectively, and ordered that the sentences run concurrently.

Appellant’s court-appointed attorney has filed a motion to withdraw supported by

a brief concluding that the appeal is frivolous and without merit. The brief meets the

requirements of Anders v. California by presenting a professional evaluation of the record

demonstrating why there are no arguable grounds to be advanced. See 386 U.S. 738, 744 (1967);

Garner v. State, 300 S.W.3d 763, 766 (Tex. Crim. App. 2009); see also Penson v. Ohio,

488 U.S. 75, 81–82 (1988). Appellant’s counsel has also certified to the Court that she sent

copies of the motion and brief to appellant; informed him of his right to examine the appellate record and file a pro se response; and provided him with a motion to assist him in obtaining the

record. See Kelly v. State, 436 S.W.3d 313, 319–20 (Tex. Crim. App. 2014); see also Anders,

386 U.S. at 744. To date, no pro se response has been filed.

We have conducted an independent review of the record, including the record of

the plea and sentencing proceedings below and appellate counsel’s brief, and find no reversible

error. See Anders, 386 U.S. at 744; Garner, 300 S.W.3d at 766; Bledsoe v. State, 178 S.W.3d 824,

826–27 (Tex. Crim. App. 2005). Nevertheless, while reviewing the record, we found a

typographical error in the judgment against appellant in cause number 80182, the sexual-assault

conviction, indicating that the “Statute for Offense” was section 22.011(a)(1)(B) of the Texas

Penal Code, which prohibits sexual assault by oral penetration. See Tex. Penal Code

§ 22.011(a)(1)(B). The indictment in that case, however, to which appellant judicially confessed

and pleaded guilty, charged sexual assault by penetration of the victim’s sexual organ, which is

proscribed by section 22.011(a)(1)(A). See id. § 22.011(a)(1)(A).

The appropriate remedy is to modify the trial court’s judgment to reflect the

correct statute. See Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27–28 (Tex. Crim.

App. 1993); Brunson v. State, No. 03-22-00434-CR, 2023 WL 4873195, at *2 (Tex. App.—

Austin Aug. 1, 2023, no pet.) (mem. op., not designated for publication). Accordingly, we

modify the judgment in cause number 80182 to reflect that the “Statute for Offense” was

“22.011(a)(1)(A) TEXAS PENAL CODE.”

We agree with counsel that the record presents no arguably meritorious grounds

for review, and the appeal is frivolous. Counsel’s motion to withdraw is granted.

2 Having modified the trial court’s judgment in cause number 80182 as set out

above, we affirm the judgment of conviction as modified in cause number 80182 and the

judgment of conviction in cause number 80183.

__________________________________________ Edward Smith, Justice

Before Justices Baker, Triana, and Smith

03-23-00060-CR Modified and, as Modified, Affirmed

03-23-00091-CR Affirmed

Filed: August 22, 2024

Do Not Publish