Tate, Lewis Oliver v. State

Opinion

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MODIFY and AFFIRM; Opinion issued January 14, 2013.

In The QCourt of §ppeal~ jfiftb 11Bistritt of 'atexa~ at J)alla~ No. 05-12-00262-CR

LEWIS OLIVER TATE, Appellant

v. THE STATE OF TEXAS, Appellee

On Appeal from the 204th Judicial District Court Dallas County, Texas Trial Court Cause No. Fll-53715-Q

MEMORANDUM OPINION Before Justices Bridges, O'Neill, and Murphy Opinion by Justice O'Neill

A jury convicted Lewis Oliver Tate of aggravated robbery with a deadly weapon, found

two enhancement paragraphs true, and assessed punishment at forty-five years' imprisonment.

See TEx. PENAL CODE ANN. § 29.03(a)(2) (West 2011). 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 prose 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 fmd nothing in the record that might arguably support

the appeal.

Although not an arguable issue, we note the record shows appellant pleaded not true to

two enhancement paragraphs during the punishment phase, and the jury found the two

enhancement paragraphs true. The judgment, however, recites "N/A" for the plea and fmdings

on each enhancement paragraph. We modify the judgment to show appellant pleaded not true to

two enhancement paragraphs and the jury found the enhancement paragraphs true. 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 affmn the trial court's judgment.

Do Not Publish TEx.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

120262F.U05

-2- QCourt of ~peal~ jfiftb j!}i~itt of ~exa~ at j!}alla~ JUDGMENT

LEWIS OLIVER TATE, Appellant Appeal from the 204th Judicial District Court of Dallas County, Texas (Tr.CtNo. No. 05-12-00262-CR V. F11-53715-Q). Opinion delivered by Justice O'Neill, THE STATE OF TEXAS, Appellee Justices Bridges and Murphy participating.

Based on the Court's opinion of this date, the trial court's judgment is MODIFIED as follows: The section entitled "Plea to 1st Enhancement Paragraph" is modified to show "Not True." The section entitled "Findings on 1st Enhancement Paragraph" is modified to show "True." The section entitled "Plea to 2nd Enhancement Paragraph" is modified to show "Not True." The section entitled "Findings on 2nd Enhancement Paragraph" is modified to show "True."

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

Judgment entered January 14, 2013.