Kevin Wesley Kirkland v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: February 10, 2022
• Docket: 09-21-00202-CR
• Status: Published

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-21-00202-CR __________________

KEVIN WESLEY KIRKLAND, Appellant

V.

THE STATE OF TEXAS, Appellee

__________________________________________________________________

On Appeal from the 75th District Court Liberty County, Texas Trial Cause No. CR34378 __________________________________________________________________

MEMORANDUM OPINION

Pursuant to a plea bargain agreement, appellant Kevin Wesley Kirkland

pleaded guilty to possession of a controlled substance, a third-degree felony. See

Tex. Health & Safety Code Ann. § 481.115(c). The trial court found the evidence

sufficient to find Kirkland guilty of possession of a controlled substance, but

deferred further proceedings, placed Kirkland on community supervision for five

years, assessed a $1000 fine, and ordered restitution of $180.

1 Subsequently, the State filed a motion to revoke Kirkland’s unadjudicated

community supervision. Kirkland pleaded “true” to violating eleven terms of the

community supervision order. After conducting an evidentiary hearing, the trial

court found that Kirkland violated the terms of his community supervision, revoked

Kirkland’s community supervision, found Kirkland guilty of possession of a

controlled substance, and imposed a sentence of four years of confinement.

Kirkland’s appellate counsel filed an Anders brief that presents counsel’s

professional evaluation of the record and concludes that the appeal is frivolous. See

Anders v. California, 386 U.S. 738 (1967); High v. State, 573 S.W.2d 807 (Tex.

Crim. App. 1978). On September 23, 2021, we notified Kirkland his pro se brief was

due November 22, 2021. We received no response from Kirkland.

We reviewed the appellate record, and we agree with counsel’s conclusion

that no arguable issues support the appeal. Therefore, we find it unnecessary to order

appointment of new counsel to re-brief the appeal. Cf. Stafford v. State, 813 S.W.2d

503, 511 (Tex. Crim. App. 1991). However, in reviewing the record, we observed

that inconsistent with the oral pronouncement, the written judgment contains the

wrong statutory provision and felony classification. See Bray v. State, 179 S.W.3d

725, 726 (Tex. App.—Fort Worth 2005, no pet.) (holding that an appellate court has

the authority to modify the judgment in an Anders case and to affirm the judgment

as modified). Accordingly, we modify the judgment to delete “481.112(c)” and

2 replace it with “481.115(c).” For the degree of offense, we delete “2nd Degree

Felony” and replace it with “3rd Degree Felony.” We affirm the trial court’s

judgment as modified. 1

AFFIRMED AS MODIFIED.

_________________________ W. SCOTT GOLEMON Chief Justice

Submitted on January 27, 2022 Opinion Delivered February 9, 2022 Do Not Publish

Before Golemon, C.J., Kreger and Johnson, JJ.

1 Kirkland may challenge our decision in this case by filing a petition for discretionary review. See Tex. R. App. P. 68. 3