Eric Vincent Wright v. State

• Court: Court of Appeals of Texas
• Decided: April 4, 2018
• Docket: 10-17-00168-CR
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-17-00168-CR

ERIC VINCENT WRIGHT, Appellant v.

THE STATE OF TEXAS, Appellee

From the 19th District Court McLennan County, Texas Trial Court No. 2015-1902-C1

MEMORANDUM OPINION

A jury convicted Appellant Eric Vincent Wright of failure to register as a sex

offender and assessed his punishment at life imprisonment as a habitual felon. See TEX.

CODE CRIM. PROC. ANN. art. 62.102(a), (b)(2) (West Supp. 2017); TEX. PENAL CODE ANN. §

12.42(d) (West Supp. 2017). This appeal ensued. We affirm the trial court’s judgment as

modified. Pursuant to Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 1400, 18 L.Ed.2d

493 (1967), Wright’s court-appointed appellate counsel filed a brief and motion to

withdraw with this Court, stating that his review of the record yielded no grounds of

error upon which an appeal can be predicated. Counsel’s brief meets the requirements

of Anders as it presents a professional evaluation demonstrating why there are no

arguable grounds to advance on appeal. See In re Schulman, 252 S.W.3d 403, 407 n.9 (Tex.

Crim. App. 2008) (“In Texas, an Anders brief need not specifically advance ‘arguable’

points of error if counsel finds none, but it must provide record references to the facts

and procedural history and set out pertinent legal authorities.”) (citing Hawkins v. State,

112 S.W.3d 340, 343-44 (Tex. App.—Corpus Christi 2003, no pet.)); Stafford v. State, 813

S.W.2d 503, 510 n.3 (Tex. Crim. App. 1991).

In compliance with High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel Op.]

1978), Wright’s counsel has carefully discussed why, under controlling authority, there

is no reversible error in the trial court’s judgment. Counsel has informed this Court that

he has: (1) examined the record and found no arguable grounds to advance on appeal;

(2) served a copy of the brief and counsel’s motion to withdraw on Wright; and (3)

informed Wright of his right to review the record and to file a pro se response.1 See Anders,

386 U.S. at 744, 87 S.Ct. at 1400; Stafford, 813 S.W.2d at 510 n.3; see also Schulman, 252

1Counsel has informed this Court that he has provided the appellate record to Wright. See Kelly v. State, 436 S.W.3d 313, 321-22 (Tex. Crim. App. 2014). Wright v. State Page 2 S.W.3d at 409 n.23. More than an adequate period of time has passed, and Wright has

not filed a pro se response. See Schulman, 252 S.W.3d at 409.

Upon receiving an Anders brief, we must conduct a full examination of all the

proceedings to determine whether the case is wholly frivolous. Penson v. Ohio, 488 U.S.

75, 80, 109 S.Ct. 346, 349-50, 102 L.Ed.2d 300 (1988). We have reviewed the entire record

and counsel’s brief and have found nothing that would arguably support an appeal. See

Bledsoe v. State, 178 S.W.3d 824, 827-28 (Tex. Crim. App. 2005) (“Due to the nature of

Anders briefs, by indicating in the opinion that it considered the issues raised in the briefs

and reviewed the record for reversible error but found none, the court of appeals met the

requirement of Texas Rule of Appellate Procedure 47.1.”); Stafford, 813 S.W.2d at 509.

Although we have found nothing that would arguably support an appeal, we

conclude that the judgment requires modification. It incorrectly lists the degree of offense

as a second-degree felony.

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, 293-94 (Tex. App.—Waco 2014, pet. struck). The offense of failure to register

as a sex offender is a third-degree felony if, as in this case, the person who is required to

register has a duty to verify registration annually for life. See TEX. CODE CRIM. PROC. ANN.

art. 62.102(b)(2). The State’s enhancement and habitual allegations were used to increase

Wright’s punishment range, but they did not change the classification of the offense. See

Wright v. State Page 3 TEX. PENAL CODE ANN. § 12.42(d); Ford v. State, 334 S.W.3d 230, 234-35 (Tex. Crim. App.

2011). Therefore, we modify the trial court’s judgment to reflect the proper degree of

offense as that of a third-degree felony. The judgment of the trial court is affirmed as

modified.

In accordance with Anders, Wright’s attorney has asked this Court for permission

to withdraw as counsel for Wright. See Anders, 386 U.S. at 744, 87 S.Ct. at 1400; see also

Schulman, 252 S.W.3d at 408 n.17 (quoting Jeffery v. State, 903 S.W.2d 776, 779-80 (Tex.

App.—Dallas 1995, no pet.) (“If an attorney believes the appeal is frivolous, he must

withdraw from representing the appellant. To withdraw from representation, the

appointed attorney must file a motion to withdraw accompanied by a brief showing the

appellate court that the appeal is frivolous.”)). We grant counsel’s motion to withdraw.

Within five days of the date of this Court’s opinion, counsel is ordered to send a copy of

this opinion and this Court’s judgment to Wright and to advise him of his right to file a

petition for discretionary review.2 See TEX. R. APP. P. 48.4; see also Schulman, 252 S.W.3d

at 412 n.35; Ex parte Owens, 206 S.W.3d 670, 673 (Tex. Crim. App. 2006).

2No substitute counsel will be appointed. Should Wright wish to seek further review of this case by the Texas Court of Criminal Appeals, he must either retain an attorney to file a petition for discretionary review or must file a pro se petition for discretionary review. Any petition for discretionary review must be filed within thirty days from the date of this opinion or from the date the last timely motion for rehearing was overruled by this Court. See TEX. R. APP. P. 68.2. Any petition and all copies of the petition for discretionary review must be filed with the Clerk of the Court of Criminal Appeals. See TEX. R. APP. P. 68.3. Any petition for discretionary review should comply with the requirements of rule 68.4 of the Texas Rules of Appellate Procedure. See TEX. R. APP. P. 68.4; see also Schulman, 252 S.W.3d at 409 n.22. Wright v. State Page 4 REX D. DAVIS Justice

Before Chief Justice Gray, Justice Davis, and Justice Scoggins Affirmed as modified Opinion delivered and filed April 4, 2018 Do not publish [CRPM]

Wright v. State Page 5