Roger Dale May v. State

• Court: Court of Appeals of Texas
• Decided: June 19, 2019
• Docket: 06-19-00005-CR
• Status: Published

Opinion

In The Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06-19-00005-CR

ROGER DALE MAY, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 5th District Court Cass County, Texas Trial Court No. 2018F00027

Before Morriss, C.J., Burgess and Stevens, JJ. Memorandum Opinion by Chief Justice Morriss MEMORANDUM OPINION In a nonjury trial, Roger Dale May was convicted of cruelty to animals for killing a dog.

See TEX. PENAL CODE ANN. § 42.092 (Supp.). The indictment, to which May pled not guilty,

alleged two prior felony convictions as sentence enhancers, which the court found true. See TEX.

PENAL CODE ANN. § 12.42. The court sentenced May to the minimum enhanced sentence in this

situation, twenty-five years’ incarceration. May appeals.

May’s attorney has filed a brief reciting that she has reviewed the record and has found no

genuinely arguable issues that could be raised on appeal. The brief sets out the procedural history

of the case and summarizes the evidence elicited during the course of the trial court

proceedings. That professional evaluation of the record, demonstrating why there are no arguable

grounds to be advanced, meets the requirements of Anders v. California. Anders v. California,

386 U.S. 738, 743–44 (1967); In re Schulman, 252 S.W.3d 403, 406 (Tex. Crim. App. 2008) (orig.

proceeding); Stafford v. State, 813 S.W.2d 503, 509–10 (Tex. Crim. App. 1991); High v. State,

573 S.W.2d 807, 812–13 (Tex. Crim. App. [Panel Op.] 1978). Counsel also filed a motion with

this Court seeking to withdraw as counsel in this appeal.

By letter dated April 3, 2019, counsel mailed to May copies of the brief, the appellate

record, and the motion to withdraw. May was informed of his rights to review the record and file

a pro se response. On May 20, 2019, May filed his pro se response with this Court.

We have determined that this appeal is wholly frivolous. We have independently reviewed

the entire appellate record and, like counsel, have determined that no arguable issue supports an

appeal. See Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim. App. 2005).

2 We observe that the trial court’s judgment recites that May pled true to the two

enhancement allegations. However, beyond his plea denying the allegations of the indictment,

May entered no plea to the enhancement allegations and challenged the State’s evidence on the

allegations. We have the authority to modify the judgment to make the record speak the truth

when the matter has been called to our attention by any source. French v. State, 830 S.W.2d 607,

609 (Tex. Crim. App. 1992). “Our authority to reform incorrect judgments is not dependent on

the request of any party, nor does it turn on a question of whether a party has or has not objected

in trial court; we may act sua sponte and may have a duty to do so.” Rhoten v. State, 299 S.W.3d

349, 356 (Tex. App.—Texarkana 2009, no pet.) (citing Asberry v. State, 813 S.W.2d 526, 531

(Tex. App.—Dallas 1991, pet. ref’d)); see French, 830 S.W.2d at 609. The Texas Rules of

Appellate Procedure also provide direct authority for this Court to modify the trial court’s

judgment. TEX. R. APP. P. 43.2. We modify the trial court’s judgment to show May pled not true

to the enhancement allegations.

In the Anders context, once we determine that the appeal is without merit, we must affirm

the trial court’s judgment. Id.

3 We modify the judgment to reflect May’s plea that the enhancement allegations were not

true and affirm the judgment as so modified. 1

Josh R. Morriss, III Chief Justice

Date Submitted: June 10, 2019 Date Decided: June 19, 2019

Do Not Publish

1 Since we agree that this case presents no reversible error, we also, in accordance with Anders, grant counsel’s request to withdraw from further representation of appellant in this case. See Anders, 386 U.S. at 744. No substitute counsel will be appointed. Should appellant desire to seek further review of this case by the Texas Court of Criminal Appeals, he must either retain an attorney to file a petition for discretionary review or file a pro se petition for discretionary review. Any petition for discretionary review (1) must be filed within thirty days from either the date of this opinion or the date on which the last timely motion for rehearing was overruled by this Court, see TEX. R. APP. P. 68.2, (2) must be filed with the clerk of the Texas Court of Criminal Appeals, see TEX. R. APP. P. 68.3, and (3) should comply with the requirements of Rule 68.4 of the Texas Rules of Appellate Procedure, see TEX. R. APP. P. 68.4. 4