Duane Dexter Taylor v. State

Opinion

In The Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06-17-00019-CR

DUANE DEXTER TAYLOR, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 8th District Court Hopkins County, Texas Trial Court No. 1323408

Before Morriss, C.J., Moseley and Burgess, JJ. Memorandum Opinion by Justice Moseley MEMORANDUM OPINION In 2014, Duane Dexter Taylor, pursuant to a negotiated plea agreement, pled guilty to

possession of less than one gram of cocaine in a drug-free zone. Taylor was placed on deferred

adjudication community supervision for a period of ten years, and, in accord with the terms of his

plea agreement, was ordered to pay $140.00 in restitution, $386.00 in court costs, and a $2,000.00

fine. Subsequently, the State filed a motion to adjudicate Taylor’s guilt, alleging that he had

violated several of the terms and conditions of his community supervision. After Taylor pled true

to all of these allegations, the trial court adjudicated Taylor’s guilt, sentenced him to a term of five

years’ imprisonment, and ordered him to pay the restitution he originally agreed to pay pursuant

to the terms of his 2014 plea bargain.1 Taylor appeals.2

Taylor’s attorney on appeal has filed a brief which states that he has reviewed the record

and has found no genuinely arguable issues that could be raised. The brief sets out the procedural

history and summarizes the evidence elicited during the course of the proceeding. Meeting the

requirements of Anders v. California, counsel has provided a professional evaluation of the record

demonstrating why there are no arguable grounds to be advanced. Anders v. California, 386 U.S.

738, 743–44 (1967); In re Schulman, 252 S.W.3d 403, 406 (Tex. Crim. App. 2008) (orig.

proceeding); Stafford v. State, 813 S.W.2d 503, 509–10 (Tex. Crim. App. 1991); High v. State,

1 The judgment waived Taylor’s fine and court costs “due to Defendant’s indigency.” 2 In our cause number 06-17-00018-CR, Taylor appeals another conviction for possession of less than one gram of cocaine in a drug-free zone.

2 573 S.W.2d 807, 812–13 (Tex. Crim. App. [Panel Op.] 1978). Counsel also filed a motion with

this Court seeking to withdraw as counsel in this appeal.

On April 17, 2017, counsel mailed Taylor copies of the brief, the appellate record, and the

motion to withdraw. Taylor was informed of his right to review the record and file a pro se

response. By letter dated April 17, 2017, this Court informed Taylor that any pro se response was

due on or before May 18, 2017. After the deadline for filing a pro se response had passed, this

Court further informed Taylor that the case was set for submission on July 7, 2017. Taylor has

not filed a pro se response.

We have reviewed the entire appellate record and have independently determined that no

reversible error exists. Yet, in Anders cases, appellate courts “have the authority to reform

judgments and affirm as modified in cases where there is non reversible error.” Ferguson v. State,

435 S.W.3d 291, 294 (Tex. App.—Waco 2014, pet. struck) (comprehensively discussing appellate

cases that have modified judgments in Anders cases). Here, the non-reversible error is found in

the trial court’s listing of the degree of offense.

Possession of cocaine “is a state jail felony if the amount of the controlled substance to

which the offense applies is, by aggregate weight, including adulterants or dilutants, less than one

gram.” TEX. HEALTH & SAFETY CODE ANN. § 481.112(b) (West 2017). When, as here, the offense

occurs in a drug-free zone, “[a]n offense otherwise punishable as a state jail felony . . . is punishable

as a felony of the third degree.” TEX. HEALTH & SAFETY CODE ANN. § 481.134(b) (West 2017).

Although Section 481.134(b) can be used to enhance a defendant’s punishment range, it does not

increase the level of the original offense.

3 We modify the trial court’s judgment to reflect that Taylor was convicted of a state jail

felony, not a third degree felony. We affirm the trial court’s judgment, as modified.3

Bailey C. Moseley Justice

Date Submitted: July 7, 2017 Date Decided: July 21, 2017

Do Not Publish

3 Since we agree that this case presents no reversible error, we also, in accord with Anders, grant counsel’s request to withdraw from further representation of appellant in this case. See Anders, 386 U.S. at 744. No substitute counsel will be appointed. Should appellant desire to seek further review of this case by the Texas Court of Criminal Appeals, she must either retain an attorney to file a petition for discretionary review or file a pro se petition for discretionary review. Any petition for discretionary review (1) must be filed within thirty days from either the date of this opinion or the date on which the last timely motion for rehearing was overruled by this Court, see TEX. R. APP. P. 68.2, (2) must be filed with the clerk of the Texas Court of Criminal Appeals, see TEX. R. APP. P. 68.3, and (3) should comply with the requirements of Rule 68.4 of the Texas Rules of Appellate Procedure, see TEX. R. APP. P. 68.4. 4