Rodney Dwayne Cleveland v. State ( 2013 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-13-00059-CR
____________________
RODNEY DWAYNE CLEVELAND, Appellant
V.
THE STATE OF TEXAS, Appellee
_______________________________________________________ ______________
On Appeal from the 252nd District Court
Jefferson County, Texas
Trial Cause No. 05-94049
________________________________________________________ _____________
MEMORANDUM OPINION
In this appeal, counsel for the appellant, Rodney Dwayne Cleveland,1 filed a
brief stating that there are no arguable points of error that would allow the court to
give Cleveland relief from his conviction. After reviewing the record, we agree
that no arguable issues support Cleveland’s appeal. See Anders v. California, 386
U.S. 738, 744 (1967).
1
The record reflects that Rodney Dwayne Cleveland is also known as “Rock
Dog.”
1
In carrying out a plea bargain agreement, Cleveland pled guilty to delivery
of a controlled substance. See Tex. Health & Safety Code Ann. § 481.112 (West
2010). 2 Under the terms of Cleveland’s plea agreement, the trial court found
Cleveland guilty of having delivered a controlled substance, assessed Cleveland’s
punishment at ten years in prison, suspended the imposition of Cleveland’s
sentence, placed Cleveland on community supervision for ten years, and assessed a
fine of $500.
Subsequently, by motion, the State asked the trial court to revoke its
community supervision order. At the revocation hearing, Cleveland pled “true” to
violating three of the terms of the trial court’s community supervision order. After
the hearing, the trial court found that Cleveland violated three of the terms of its
community supervision order and sentenced Cleveland to serve ten years in prison.
Cleveland appealed.3
2
We cite to the current version of the statute because the subsequent
amendment does not affect the outcome of this appeal.
3
We note that we previously dismissed Cleveland’s appeal because the trial
court’s certification indicates that this is a plea bargain case and the defendant
waived his right to appeal. Cleveland filed a motion for rehearing; the State
responded, explaining that Cleveland is attempting to appeal from the revocation,
not the original plea proceeding and that nothing indicated that Cleveland had
waived his right to appeal. As a result, we reinstated Cleveland’s appeal. At this
late stage in the appellate process, rather than order the trial court to prepare and
file an amended certification regarding the revocation appeal, the certification in
2
On appeal, Cleveland’s counsel filed a brief presenting counsel’s
professional evaluation of the record. The brief states that Cleveland’s appeal is
frivolous. See Anders, 386 U.S. at 744; High v. State, 573 S.W.2d 807 (Tex. Crim.
App. 1978). We granted an extension of time to allow Cleveland to file a pro se
brief, and Cleveland filed a response. Cleveland’s response points out clerical
errors in the trial court’s judgment. According to Cleveland, the judgment reflects
that he was convicted of possession of a controlled substance, but the court’s
record reflects that his conviction was for delivering a controlled substance. See
Tex. Health & Safety Code Ann. §§ 481.112, 481.115 (West 2010).
After reviewing the appellate record, the Anders brief filed by Cleveland’s
counsel, and Cleveland’s pro se response, we agree with counsel’s conclusion that
no arguable issues support Cleveland’s appeal. Therefore, we need not order the
appointment of new counsel to re-brief Cleveland’s appeal. Cf. Stafford v. State,
813 S.W.2d 503, 511 (Tex. Crim. App. 1991).
Before our opinion issued, the trial court entered a judgment nunc pro tunc,
correcting one of the clerical errors in the judgment by substituting “DELIVERY
the record that applies to the revocation hearing is deemed amended to certify that
this “[i]s not a plea-bargain case[,] and the defendant has the right of appeal.” See
Tex. R. App. P. 2.
3
CS PG1 >=1G<4G” for the recitation stating “POSS CS PG1 >=1G<4G” under
“Offense for which Defendant Convicted[.]” However, the judgment still cites the
wrong statute for Cleveland’s conviction. Therefore, under “Statute for Offense[,]”
we substitute “481.112(c) HS” where the judgment states the conviction was based
on “481.115(c) HS[.]” As this is a clerical issue, and because no arguable issues
support Cleveland’s appeal, we affirm the trial court’s nunc pro tunc judgment, as
reformed. 4
AFFIRMED AS REFORMED.
_________________________
HOLLIS HORTON
Justice
Submitted on December 2, 2013
Opinion Delivered December 11, 2013
Do Not Publish
Before McKeithen, C.J., Kreger and Horton, JJ.
4
Cleveland may challenge our decision in this case by filing a petition for
discretionary review. See Tex. R. App. P. 68.
4