Brian Sylvester Diggs v. the State of Texas ( 2022 )

Modified and Affirmed and Opinion Filed December 14, 2022
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-21-00961-CR
No. 05-21-00962-CR
BRIAN SYLVESTER DIGGS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 194th Judicial District Court
Dallas County, Texas
Trial Court Cause No. F20-52897-M & F20-52898-M
MEMORANDUM OPINION
Before Justices Myers, Pedersen, III, and Garcia
Opinion by Justice Myers
Appellant Brian Sylvester Diggs entered negotiated pleas of guilty and
judicial confessions in two cases: (1) possession with intent to deliver
methamphetamine in an amount of four grams or more but less than 200 grams in
cause number 05-21-00961-CR; and (2) possession of heroin in an amount less than
one gram in cause number 05-21-00962-CR. The court accepted the pleas and, in
accordance with the terms of the respective plea agreements, placed appellant on
five years of deferred adjudication probation in each case. Appellant subsequently
entered pleas of true to allegations in the State’s motions to adjudicate in the two
cases. The court adjudicated appellant guilty and revoked his probation in the two
cases. In cause 05-21-00961-CR, the court sentenced appellant to fifteen years of
confinement in the Institutional Division of the Texas Department of Criminal
Justice (TDCJ), and in cause 05-21-00962-CR, the court sentenced appellant to one
year in the State Jail Division of the TDCJ.
Appellant’s counsel has filed a motion to withdraw. The motion is supported
by a brief in which counsel professionally and conscientiously examines the record
and applicable law and concludes this appeal is frivolous and without merit.
Counsel certifies that he provided appellant with a copy of the brief and the
motion to withdraw. 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, 812–13 (Tex. Crim. App. [Panel Op.] 1978) (determining whether brief
meets requirements of Anders); see also Arevalos v. State, 606 S.W.3d 912, 915–16
(Tex. App.—Dallas 2020, no pet.) (citing High and concluding Anders brief in
support of motion to withdraw did not meet requirements of Anders and was
deficient as to form). We advised appellant by letter of his right to file a pro se
response, but he has not filed a pro se response. See Kelly v. State, 436 S.W.3d 313,
319–21 (Tex. Crim. App. 2014) (appellant has right to file pro se response to Anders
brief filed by counsel).
We have reviewed the record and counsel’s brief. See Bledsoe v. State, 178
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S.W.3d 824, 826–27 (Tex. Crim. App. 2005) (explaining appellate court’s duty in
Anders cases). We agree the appeal is frivolous and without merit, and we find
nothing in the record that might arguably support the appeal.
Although not arguable issues, we note one clerical error in the judgment in
cause 05-21-00962-CR, and a separate clerical error in each of the judgments.
Appellant was convicted of the state jail felony offense of possession of less than
one gram of heroin under section 481.115(b). See TEX. HEALTH & SAFETY CODE §
481.115(b). But the written judgment in 00962-CR incorrectly states that the
applicable statute is section 481.115(c). In addition, the judgments in each of the
cases state that the attorney for the State was Thelma Anderson, while the reporter’s
record shows the attorney for the State to be Amy Lockhart.
When the record provides the necessary information to correct inaccuracies in
the trial court’s judgment, we have the authority to reform the judgment to speak the
truth. 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). Accordingly, we modify the judgment in 05-21-00962-CR to reflect that
appellant was convicted of the state jail felony offense of possession of less than one
gram of heroin under section 481.115(b), and we further modify each judgment to
reflect that the attorney for the State was Amy Lockhart.
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We grant counsel’s motion to withdraw and, as modified, affirm the
judgment.
/Lana Myers//
LANA MYERS
JUSTICE
210961f.u05
210962f.u05
Do Not Publish
TEX. R. APP. P. 47.2(b)
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
BRIAN SYLVESTER DIGGS, On Appeal from the 194th Judicial
Appellant District Court, Dallas County, Texas
Trial Court Cause No. F20-52897-M.
No. 05-21-00961-CR V. Opinion delivered by Justice Myers.
Justices Pedersen, III and Garcia
THE STATE OF TEXAS, Appellee participating.
Based on the Court’s opinion of this date, the judgment of the trial court is
MODIFIED as follows:
The portion of the judgment entitled “Attorney for State” is changed to
“Amy Lockhart SBOT 24056758.
As REFORMED, the judgment is AFFIRMED. The trial court is directed to
prepare a corrected judgment that reflects the modifications made in this Court’s
opinion and judgment in this case.
Judgment entered this 14th day of December, 2022.
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
BRIAN SYLVESTER DIGGS, On Appeal from the 194th Judicial
Appellant District Court, Dallas County, Texas
Trial Court Cause No. F20-52898-M.
No. 05-21-00962-CR V. Opinion delivered by Justice Myers.
Justices Pedersen, III and Garcia
THE STATE OF TEXAS, Appellee participating.
Based on the Court’s opinion of this date, the judgment of the trial court is
MODIFIED as follows:
The portion of the judgment entitled “Statute for Offense” is changed
to “481.115(b) Health and Safety Code.”
The portion of the judgment entitled “Attorney for State” is changed to
“Amy Lockhart SBOT 24056758
As REFORMED, the judgment is AFFIRMED. The trial court is directed to
prepare a corrected judgment that reflects the modifications made in this Court’s
opinion and judgment in this case.
Judgment entered this 14th day of December, 2022.
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