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

2

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Do Not Publish TEX.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

3

Court of Appeals

Fifth District of Texas at Dallas

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.”

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

Judgment entered August 2, 2013.

/Michael J. O'Neill/

MICHAEL J. O'NEILL

JUSTICE