Alton Stafford v. the State of Texas ( 2021 )

NUMBER 13-20-00324-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
ALTON STAFFORD, Appellant,
v.
THE STATE OF TEXAS,
Appellee.
On appeal from the 24th District Court
of De Witt County, Texas.
MEMORANDUM OPINION
Before Justices Longoria, Hinojosa, and Tijerina
Memorandum Opinion by Justice Hinojosa
Appellant Alton Stafford appeals a judgment revoking his community supervision
and adjudicating him guilty of possession of methamphetamine in an amount of four
grams or more but less than 200 grams, a second-degree felony enhanced for
punishment to a first-degree felony by Stafford’s prior felony conviction. See TEX. HEALTH
& SAFETY CODE ANN. § 481.115(d); TEX. PENAL CODE ANN. § 12.42(b). The trial court
sentenced Stafford to eight years’ imprisonment. Stafford’s court-appointed counsel has
filed an Anders brief stating that there are no arguable grounds for appeal but identifying
a clerical error in the judgment. See Anders v. California, 386 U.S. 738, 744 (1967). We
affirm as modified.
I. ANDERS BRIEF
Pursuant to Anders v. California, Stafford’s court-appointed appellate counsel has
filed a motion to withdraw and a brief in support thereof in which he states that he has
diligently reviewed the entire record and has found no non-frivolous grounds for appeal.
See id. Counsel’s brief meets the requirements of Anders as it presents a professional
evaluation demonstrating why there are no arguable grounds to advance on appeal. See
In re Schulman, 252 S.W.3d 403, 407 n.9 (Tex. Crim. App. 2008) (“In Texas, an Anders
brief need not specifically advance ‘arguable’ points of error if counsel finds none, but it
must provide record references to the facts and procedural history and set out pertinent
legal authorities.” (citing Hawkins v. State, 112 S.W.3d 340, 343–44 (Tex. App.—Corpus
Christi–Edinburg 2003, no pet.))); Stafford v. State, 813 S.W.2d 503, 510 n.3 (Tex. Crim.
App. 1991).
In compliance with High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel
Op.] 1978) and Kelly v. State, 436 S.W.3d 313, 318–19 (Tex. Crim. App. 2014), Stafford’s
counsel carefully discussed why, under controlling authority, there is no reversible error
in the trial court’s judgment. Counsel has informed this Court in writing that he has: (1)
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notified Stafford that counsel has filed an Anders brief and a motion to withdraw; (2)
provided Stafford with copies of both pleadings; (3) informed Stafford of his rights to file
a pro se response, 1 review the record preparatory to filing that response, and seek
discretionary review if the court of appeals concludes that the appeal is frivolous; and (4)
provided Stafford with a form motion for pro se access to the appellate record, lacking
only Stafford’s signature and the date and including the mailing address for the court of
appeals, with instructions to file the motion within ten days. See Anders, 386 U.S. at 744;
Kelly, 436 S.W.3d at 318–19; see also In re Schulman, 252 S.W.3d at 409 n.23. An
adequate amount of time has passed, and Stafford has not filed a pro se response.
II. INDEPENDENT REVIEW
Upon receiving an Anders brief, we must conduct a full examination of all the
proceedings to determine whether the case is wholly frivolous. Penson v. Ohio, 488 U.S.
75, 80 (1988). We have reviewed the entire record and counsel’s brief and found nothing
that would arguably support an appeal. See Bledsoe v. State, 178 S.W.3d 824, 827–28
(Tex. Crim. App. 2005) (“Due to the nature of Anders briefs, by indicating in the opinion
that it considered the issues raised in the briefs and reviewed the record for reversible
error but found none, the court of appeals met the requirement of Texas Rule of Appellate
Procedure 47.1.”); Stafford, 813 S.W.2d at 509. However, Stafford’s attorney has brought
to the Court’s attention a clerical error in the judgment regarding the degree of the
1 The Texas Court of Criminal Appeals has held that “the pro se response need not comply with
the rules of appellate procedure in order to be considered. Rather, the response should identify for the court
those issues which the indigent appellant believes the court should consider in deciding whether the case
presents any meritorious issues.” In re Schulman, 252 S.W.3d 403, 409 n.23 (Tex. Crim. App. 2008)
(quoting Wilson v. State, 955 S.W.2d 693, 696–97 (Tex. App.—Waco 1997, no pet.)).
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convicted offense.
We have the authority to modify a judgment in an Anders case and affirm the
judgment as modified where there is no reversible error. Ferguson v. State, 435 S.W.3d
291, 293 (Tex. App.—Waco 2014, pet. struck); see TEX. R. APP. P. 43.2(b); French v.
State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992) (holding that “an appellate court has
authority to reform a judgment . . . to make the record speak the truth when the matter
has been called to its attention by any source”); see also Allen v. State, No. 06-20-00072-
CR, 2021 WL 55640, at *2 (Tex. App.—Texarkana Jan. 7, 2021, no pet.) (mem. op., not
designated for publication) (modifying the judgment in an Anders appeal to reflect that the
appellant’s conviction was for a state-jail felony punishable as a second-degree felony).
Here, the judgment notes that the degree of the offense for which Stafford was convicted
is a first-degree felony. However, Stafford was convicted of a second-degree felony
enhanced for punishment to a first-degree felony. See TEX. HEALTH & SAFETY CODE ANN.
§ 481.115(d); TEX. PENAL CODE ANN. § 12.42(b). Although the punishment range for an
offense may be enhanced by proof of a prior felony conviction, the enhancement does
not affect the grade of the primary offense. See Ford v. State, 334 S.W.3d 230, 234–35
(Tex. Crim. App. 2011). Therefore, to the extent the judgment in this case suggests that
Stafford was convicted of a first-degree offense, it is incorrect. See id.; see also Garrett
v. State, No. 03-17-00031-CR, 2017 WL 3897324, at *2 (Tex. App.—Austin Aug. 31,
2017, no pet.) (mem. op., not designated for publication).
Accordingly, we modify the judgment adjudicating guilt to reflect that the degree of
the offense for which Stafford was convicted is a second-degree felony enhanced for
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punishment to a first-degree felony. See TEX. R. APP. P. 43.2(b).
III. MOTION TO WITHDRAW
In accordance with Anders, Stafford’s attorney has asked this Court for permission
to withdraw as counsel for appellant. See Anders, 386 U.S. at 744; see also In re
Schulman, 252 S.W.3d at 408 n.17 (“[I]f an attorney believes the appeal is frivolous, he
must withdraw from representing the appellant. To withdraw from representation, the
appointed attorney must file a motion to withdraw accompanied by a brief showing the
appellate court that the appeal is frivolous.” (citing Jeffery v. State, 903 S.W.2d 776, 779–
80 (Tex. App.—Dallas 1995, no pet.) (citations omitted))). We grant counsel’s motion to
withdraw. Within five days of the date of this Court’s opinion, counsel is ordered to send
a copy of this opinion and this Court’s judgment to Stafford and to advise him of his right
to file a petition for discretionary review. 2 See TEX. R. APP. P. 48.4; see also In re
Schulman, 252 S.W.3d at 412 n.35; Ex parte Owens, 206 S.W.3d 670, 673 (Tex. Crim.
App. 2006).
IV. CONCLUSION
We modify the trial court’s judgment to reflect that the degree of the offense for
which Stafford was convicted is a second-degree felony enhanced for punishment to a
first-degree felony. We affirm the trial court’s judgment as modified.
2 No substitute counsel will be appointed. Should Stafford wish 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 must be filed
within thirty days from the date of either this opinion or the last timely motion for rehearing or timely motion
for en banc reconsideration that was overruled by this Court. See TEX. R. APP. P. 68.2. Any petition for
discretionary review must be filed with the clerk of the Court of Criminal Appeals. See id. R. 68.3. Any
petition for discretionary review should comply with the requirements of Texas Rule of Appellate Procedure
68.4. See id. R. 68.4.
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LETICIA HINOJOSA
Justice
Do not publish.
TEX. R. APP. P. 47.2 (b).
Delivered and filed on the
10th day of June, 2021.
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