Shawn David McCulley v. State ( 2001 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

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NO. 03-01-00165-CR

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Shawn David McCulley, Appellant

v.

The State of Texas, Appellee

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FROM THE DISTRICT COURT OF LAMPASAS COUNTY, 27TH JUDICIAL DISTRICT NO. 7062, HONORABLE JOE CARROLL, JUDGE PRESIDING

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A jury found appellant Shawn David McCulley guilty of arson, for which the district court assessed punishment of imprisonment for sixteen years. See Tex. Pen. Code Ann. § 28.02 (West Supp. 2002). We will modify the judgment and affirm as modified.

Appellant's court-appointed attorney filed a brief concluding that the appeal is frivolous and without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738 (1967), by presenting a professional evaluation of the record demonstrating why there are no arguable grounds to be advanced. See also Penson v. Ohio, 488 U.S. 75 (1988); High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978); Currie v. State, 516 S.W.2d 684 (Tex. Crim. App. 1974); Jackson v. State, 485 S.W.2d 553 (Tex. Crim. App. 1972); Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969). A copy of counsel's brief was delivered to appellant, and appellant was advised of his right to examine the appellate record and to file a pro se brief. No pro se brief has been filed.

We have reviewed the record and counsel's brief and agree that the appeal is frivolous insofar as no reversible error is shown. Counsel's motion to withdraw is granted.

We do find nonreversible error in the judgment. The judgment recites that appellant waived trial by jury and pleaded guilty. In fact, appellant was convicted by a jury after pleading not guilty. The judgment shall be modified to so reflect. As modified, the judgment of conviction is affirmed.

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Lee Yeakel, Justice

Before Justices Kidd, Yeakel and Patterson

Modified and, as Modified, Affirmed

Filed: December 13, 2001

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