Michael Kelley v. State

Opinion

MODIFY and AFFIRM; and Opinion Filed August 2, 2013.

In The Court of Appeals Fifth District of Texas at Dallas No. 05-13-00023-CR

MICHAEL CARL KELLEY, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 194th Judicial District Court Dallas County, Texas Trial Court Cause No. F12-61149-M

MEMORANDUM OPINION Before Justices O’Neill, Francis, and Fillmore Opinion by Justice O’Neill

Michael Carl Kelley waived a jury and pleaded not guilty to burglary of a building. See

TEX. PENAL CODE ANN. § 30.02 (West 2011). After the trial court found appellant guilty,

appellant pleaded true to two enhancement paragraphs. The trial court assessed punishment at

four years’ imprisonment and a $1,500 fine. On appeal, appellant’s attorney filed a brief in

which she concludes the appeal is wholly frivolous and without merit. The brief meets the

requirements of Anders v. California, 386 U.S. 738 (1967). The brief presents a professional

evaluation of the record showing why, in effect, there are no arguable grounds to advance. See

High v. State, 573 S.W.2d 807, 811 (Tex. Crim. App. [Panel Op.] 1978). Counsel delivered a copy of the brief to appellant. We advised appellant of his right to file a pro se response, but he

did not file a pro se response.

We have reviewed the record and counsel’s brief. See Bledsoe v. State, 178 S.W.3d 824,

827 (Tex. Crim. App. 2005) (explaining appellate court’s duty in Anders cases). We agree the

appeal is frivolous and without merit. We find nothing in the record that might arguably support

the appeal.

Although not an arguable issue, we note the offense date recited in the trial court’s

judgment is incorrect. The indictment stated the offense occurred on January 7, 2012. Prior to

the plea hearing, the trial court granted the State’s motion to amend the indictment by changing

the offense date to October 7, 2012. The judgment, however, recites the date of the offense was

January 7, 2012. We modify the trial court’s judgment to show the date of the offense was

October 7, 2012. See TEX. R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27–28 (Tex. Crim.

App. 1993); Asberry v. State, 813 S.W.2d 526, 529–30 (Tex. App.─Dallas 1991, pet. ref’d).

As modified, we affirm the trial court’s judgment.

/Michael J. O'Neill/ MICHAEL J. O'NEILL JUSTICE

Do Not Publish TEX. R. APP. P. 47

130023F.U05

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JUDGMENT

MICHAEL CARL KELLEY, Appellant Appeal from the 194th Judicial District Court of Dallas County, Texas (Tr.Ct.No. No. 05-13-00023-CR V. F12-61149-M). Opinion delivered by Justice O’Neill, THE STATE OF TEXAS, Appellee Justices Francis and Fillmore participating.

Based on the Court’s opinion of this date, the trial court’s judgment is MODIFIED as follows:

The section entitled “Date of Offense” is modified to show “October 7, 2012.”

Judgment entered August 2, 2013.

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