John Michael Weatherly v. State

• Court: Court of Appeals of Texas
• Decided: March 31, 2017
• Docket: 07-16-00189-CR
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo ________________________

No. 07-16-00189-CR ________________________

JOHN MICHAEL WEATHERLY, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 181st District Court Randall County, Texas Trial Court No. 26,147-B; Honorable John B. Board, Presiding

March 31, 2017

MEMORANDUM OPINION Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

Following a plea of not guilty, Appellant, John Michael Weatherly, was convicted

of possession of a controlled substance, specifically, methamphetamine, in an amount

of less than one gram, a state jail felony, in a drug-free zone,1 enhanced by two prior

1 TEX. HEALTH & SAFETY CODE ANN. § 481.115(b) (West 2010). The drug-free zone enhancement elevates punishment to a third degree felony. Id. at § 481.134(d)(1) (West Supp. 2016). state jail felonies.2 The trial court sentenced Appellant to five years confinement. In

presenting this appeal, counsel has filed an Anders3 brief in support of a motion to

withdraw. We modify the judgment to reflect the correct plea of not guilty entered by

Appellant, affirm as modified, and grant counsel’s motion to withdraw.

In support of her motion to withdraw, counsel certifies she has conducted a

conscientious examination of the record, and in her opinion, it reflects no potentially

plausible basis for reversal of Appellant’s conviction. Anders v. California, 386 U.S.

738, 744-45, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967); In re Schulman, 252 S.W.3d 403,

406 (Tex. Crim. App. 2008). Counsel candidly discusses why, under the controlling

authorities, the record supports that conclusion. See High v. State, 573 S.W.2d 807,

813 (Tex. Crim. App. 1978). Counsel has demonstrated that she has complied with the

requirements of Anders and In re Schulman by (1) providing a copy of the brief and

appellate record to Appellant, (2) notifying him of the right to file a pro se response if he

desired to do so, and (3) informing him of the right to file a pro se petition for

discretionary review. In re Schulman, 252 S.W.3d at 408.4 By letter, this court granted

Appellant an opportunity to exercise his right to file a response to counsel’s brief, should

2 TEX. PENAL CODE ANN. § 12.425(a) (West Supp. 2016). Under the statute for habitual state jail felony offenders, punishment is increased to that of a third degree felony. 3 Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967). 4 Notwithstanding that Appellant was informed of his right to file a pro se petition for discretionary review upon execution of the Trial Court’s Certification of Defendant’s Right of Appeal, counsel must comply with Rule 48.4 of the Texas Rules of Appellate Procedure which provides that counsel shall within five days after this opinion is handed down, send Appellant a copy of the opinion and judgment together with notification of his right to file a pro se petition for discretionary review. In re Schulman, 252 S.W.3d at 408 n.22 & 411 n.35. The duty to send the client a copy of this court’s decision is an informational one, not a representational one. It is ministerial in nature, does not involve legal advice, and exists after the court of appeals has granted counsel’s motion to withdraw. Id. at 411 n.33.

2 he be so inclined. Id. at 409 n.23. Appellant did file a response raising ineffective

assistance of counsel and other issues. The State did not favor us with a brief.

BACKGROUND

On August 23, 2015, at approximately 9:00 a.m., Appellant was pulled over for

an expired registration. The officer approached Appellant’s car and identified himself.

He recognized Appellant from previous interactions and asked to search the car.

Appellant consented and exited the car. The officer found drug paraphernalia and

asked Appellant for consent to search his person. Appellant refused to be searched

and the officer obtained and was granted authorization from his supervisor to arrest

Appellant for possession of drug paraphernalia.5 The officer then searched Appellant

incident to arrest. The search revealed two very small baggies containing contraband

rolled up inside a third bag inside the coin pocket of Appellant’s pants. Appellant was

arrested for possession of methamphetamine.

At a bench trial, Appellant stipulated to admission of a Department of Public

Safety lab report establishing that the contraband he possessed was methamphetamine

in an amount of .64 grams. He also stipulated to admission of a city map depicting the

drug-free zone in which he was stopped. His defense, however, which he and

numerous witnesses testified to, was that a man named Daniel Sears had planted the

contraband in his blue jeans when he borrowed his car. The witnesses established that

Appellant and Sears had a volatile relationship and that Sears had threatened Appellant

on several occasions.

5 TEX. HEALTH & SAFETY CODE ANN. § 481.125(a) (West 2010). The offense is a Class C misdemeanor. Id. at (d).

3 ANALYSIS

By the Anders brief, counsel thoroughly reviews pretrial, trial, and post-trial

proceedings. She candidly concedes reversible error is not presented.

To prove that Appellant was guilty of possession of a controlled substance, the

State was required to prove he (1) exercised “actual care, custody, control, or

management” of the substance and (2) knew the matter he possessed was contraband.

See TEX. PENAL CODE ANN. § 1.07(a)(39) (West Supp. 2016). See also Poindexter v.

State, 153 S.W.3d 402, 405-06 (Tex. Crim. App. 2005); Melton v. State, 456 S.W.3d

309, 315 (Tex. App.—Amarillo 2015, no pet.).

When we have an Anders brief by counsel and a pro se response by an

appellant, we have two choices. We may determine that the appeal is wholly frivolous

and issue an opinion explaining that we have reviewed the record and find no reversible

error; Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005) (citing Anders,

386 U.S. at 744), or we may determine that arguable grounds for appeal exist and

remand the cause to the trial court so that new counsel may be appointed to brief

issues. Id. (citing Stafford v. State, 813 S.W.2d 503, 510 (Tex. Crim. App. 1991)).

We have independently examined the record to determine whether there are any

non-frivolous issues which might support the appeal. See Penson v. Ohio, 488 U.S. 75,

80, 109 S. Ct. 346, 102 L. Ed. 2d 300 (1988); In re Schulman, 252 S.W.3d at 409;

Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991). We have found no such

issues. See Gainous v. State, 436 S.W.2d 137, 138 (Tex. Crim. App. 1969). After

reviewing the record, counsel’s brief, and Appellant’s pro se response, we agree there

4 is no plausible basis (including matters raised by Appellant’s response) for reversal of

his conviction. See Bledsoe, 178 S.W.3d at 826-27.

REFORMATION OF JUDGMENT

In the Anders brief, counsel correctly requests that the judgment of conviction be

modified to reflect Appellant’s plea of not guilty. Under the summary portion of the

judgment under Plea to Offense, it recites that Appellant entered a plea of “GUILTY”;

the reporter’s record, however, reflects that Appellant entered a plea of “not guilty.”

This court has the power to modify the judgment of the court below to make the

record speak the truth when we have the necessary information to do so. TEX. R. APP.

P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993). Appellate

courts have the power to reform whatever the trial court could have corrected by a

judgment nunc pro tunc where the evidence necessary to correct the judgment appears

in the record. Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.—Dallas 1991, pet.

ref'd).

CONCLUSION

We reform the summary portion of the judgment to reflect “Not Guilty” under Plea

to Offense. Accordingly, as modified, the trial court’s judgment is affirmed and counsel's

motion to withdraw is granted.

Patrick A. Pirtle Justice

Do not publish.