Mac Jim White v. the State of Texas

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-24-00251-CR

Mac Jim White, Appellant

v.

The State of Texas, Appellee

FROM THE 433RD DISTRICT COURT OF COMAL COUNTY NO. CR2023-218D, GLENN H. DEVLIN, JUDGE PRESIDING

MEMORANDUM OPINION

Appellant Mac Jim White was charged with possession of a controlled substance in an amount between 4 grams and 200 grams. See Tex. Health & Safety Code §§ 481.115(d). The indictment also included two enhancement allegations, each stating that White previously had been convicted of the felony offense of robbery. See Tex. Penal Code § 12.42(b). At trial, White entered a plea of not guilty but pled true to both enhancement paragraphs. The jury found White guilty and assessed punishment at twenty years’ imprisonment. The trial court pronounced the sentence in accordance with the jury’s verdict and sentenced White to twenty years’ imprisonment and a fine of $10,000. White then appealed his conviction.

White’s court-appointed attorney on appeal filed a motion to withdraw supported by an Anders brief contending that the appeal is frivolous and without merit. See Anders v. California, 386 U.S. 738, 744-45 (1967). White’s court-appointed attorney’s brief concluding that

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the appeal is frivolous and without merit meets the requirements of Anders by presenting a professional evaluation of the record and demonstrating that there are no arguable grounds to be advanced. See id.; 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) (explaining that briefs serve purpose of “assisting the court in determining both that counsel in fact conducted the required detailed review of the case and that the appeal is . . . frivolous”). White’s counsel represented to the Court that he provided copies of the motion and brief to White; advised White of his right to examine the appellate record, file a pro se brief, and pursue discretionary review following the resolution of the appeal in this Court; and provided White with a form motion for pro se access to the appellate record along with the mailing address of this Court. See Kelly v. State, 436 S.W.3d 313, 319-20 (Tex. Crim. App. 2014). To date, White has not filed a request for the appellate record, a pro se response, or a motion for extension of time.

We have independently reviewed the record and considered appellate counsel’s brief, and we have found nothing that might arguably support the appeal. See Anders, 386 U.S. at 744; Garner, 300 S.W.3d at 766. We agree with counsel that the appeal is frivolous and without merit, and we grant counsel’s motion to withdraw.

We observe, however, that the judgment of conviction incorrectly lists Texas Penal Code section 12.24(b), rather than section 12.42(b), as the statute for enhancement. See Tex. Penal Code § 12.42(b). This Court has authority to modify incorrect judgments in Anders cases when the necessary information is available to do so. See Tex. R. App. P. 43.2(b); Getts v. State, 155 S.W.3d 153, 155 (Tex. Crim. App. 2005) (affirming appellate court’s reformation of trial court’s judgment in Anders case); Bray v. State, 179 S.W.3d 725, 729–30 (Tex. App.—Fort Worth

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2005, no pet.). Accordingly, we modify the judgment of conviction to reflect that the statute for enhancement is Texas Penal Code section 12.42(b).

We affirm the trial court’s judgment of conviction, as modified.

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Chari L. Kelly, Justice

Before Chief Justice Byrne, Justices Triana and Kelly Modified and, as Modified, Affirmed Filed: November 14, 2024 Do Not Publish