Mac Jim White v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: November 14, 2024
• Docket: 03-24-00251-CR
• Status: Published

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 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

2 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.

__________________________________________ Chari L. Kelly, Justice

Before Chief Justice Byrne, Justices Triana and Kelly

Modified and, as Modified, Affirmed

Filed: November 14, 2024

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