Kevin Wesley Kirkland v. the State of Texas ( 2022 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-21-00202-CR
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KEVIN WESLEY KIRKLAND, Appellant
V.
THE STATE OF TEXAS, Appellee
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On Appeal from the 75th District Court
Liberty County, Texas
Trial Cause No. CR34378
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MEMORANDUM OPINION
Pursuant to a plea bargain agreement, appellant Kevin Wesley Kirkland
pleaded guilty to possession of a controlled substance, a third-degree felony. See
Tex. Health & Safety Code Ann. § 481.115(c). The trial court found the evidence
sufficient to find Kirkland guilty of possession of a controlled substance, but
deferred further proceedings, placed Kirkland on community supervision for five
years, assessed a $1000 fine, and ordered restitution of $180.
1
Subsequently, the State filed a motion to revoke Kirkland’s unadjudicated
community supervision. Kirkland pleaded “true” to violating eleven terms of the
community supervision order. After conducting an evidentiary hearing, the trial
court found that Kirkland violated the terms of his community supervision, revoked
Kirkland’s community supervision, found Kirkland guilty of possession of a
controlled substance, and imposed a sentence of four years of confinement.
Kirkland’s appellate counsel filed an Anders brief that presents counsel’s
professional evaluation of the record and concludes that the appeal is frivolous. See
Anders v. California, 386 U.S. 738 (1967); High v. State, 573 S.W.2d 807 (Tex.
Crim. App. 1978). On September 23, 2021, we notified Kirkland his pro se brief was
due November 22, 2021. We received no response from Kirkland.
We reviewed the appellate record, and we agree with counsel’s conclusion
that no arguable issues support the appeal. Therefore, we find it unnecessary to order
appointment of new counsel to re-brief the appeal. Cf. Stafford v. State, 813 S.W.2d
503, 511 (Tex. Crim. App. 1991). However, in reviewing the record, we observed
that inconsistent with the oral pronouncement, the written judgment contains the
wrong statutory provision and felony classification. See Bray v. State, 179 S.W.3d
725, 726 (Tex. App.—Fort Worth 2005, no pet.) (holding that an appellate court has
the authority to modify the judgment in an Anders case and to affirm the judgment
as modified). Accordingly, we modify the judgment to delete “481.112(c)” and
2
replace it with “481.115(c).” For the degree of offense, we delete “2nd Degree
Felony” and replace it with “3rd Degree Felony.” We affirm the trial court’s
judgment as modified. 1
AFFIRMED AS MODIFIED.
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W. SCOTT GOLEMON
Chief Justice
Submitted on January 27, 2022
Opinion Delivered February 9, 2022
Do Not Publish
Before Golemon, C.J., Kreger and Johnson, JJ.
1
Kirkland may challenge our decision in this case by filing a petition for
discretionary review. See Tex. R. App. P. 68.
3