Roger Dale May v. State

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-19-00005-CR
ROGER DALE MAY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 5th District Court
Cass County, Texas
Trial Court No. 2018F00027
Before Morriss, C.J., Burgess and Stevens, JJ.
Memorandum Opinion by Chief Justice Morriss
MEMORANDUM OPINION
In a nonjury trial, Roger Dale May was convicted of cruelty to animals for killing a dog.
See TEX. PENAL CODE ANN. § 42.092 (Supp.). The indictment, to which May pled not guilty,
alleged two prior felony convictions as sentence enhancers, which the court found true. See TEX.
PENAL CODE ANN. § 12.42. The court sentenced May to the minimum enhanced sentence in this
situation, twenty-five years’ incarceration. May appeals.
May’s attorney has filed a brief reciting that she has reviewed the record and has found no
genuinely arguable issues that could be raised on appeal. The brief sets out the procedural history
of the case and summarizes the evidence elicited during the course of the trial court
proceedings. That professional evaluation of the record, demonstrating why there are no arguable
grounds to be advanced, meets the requirements of Anders v. California. Anders v. California,
386 U.S. 738, 743–44 (1967); In re Schulman, 252 S.W.3d 403, 406 (Tex. Crim. App. 2008) (orig.
proceeding); Stafford v. State, 813 S.W.2d 503, 509–10 (Tex. Crim. App. 1991); High v. State,
573 S.W.2d 807, 812–13 (Tex. Crim. App. [Panel Op.] 1978). Counsel also filed a motion with
this Court seeking to withdraw as counsel in this appeal.
By letter dated April 3, 2019, counsel mailed to May copies of the brief, the appellate
record, and the motion to withdraw. May was informed of his rights to review the record and file
a pro se response. On May 20, 2019, May filed his pro se response with this Court.
We have determined that this appeal is wholly frivolous. We have independently reviewed
the entire appellate record and, like counsel, have determined that no arguable issue supports an
appeal. See Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim. App. 2005).
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We observe that the trial court’s judgment recites that May pled true to the two
enhancement allegations. However, beyond his plea denying the allegations of the indictment,
May entered no plea to the enhancement allegations and challenged the State’s evidence on the
allegations. We have the authority to modify the judgment to make the record speak the truth
when the matter has been called to our attention by any source. French v. State, 830 S.W.2d 607,
609 (Tex. Crim. App. 1992). “Our authority to reform incorrect judgments is not dependent on
the request of any party, nor does it turn on a question of whether a party has or has not objected
in trial court; we may act sua sponte and may have a duty to do so.” Rhoten v. State, 299 S.W.3d
349, 356 (Tex. App.—Texarkana 2009, no pet.) (citing Asberry v. State, 813 S.W.2d 526, 531
(Tex. App.—Dallas 1991, pet. ref’d)); see French, 830 S.W.2d at 609. The Texas Rules of
Appellate Procedure also provide direct authority for this Court to modify the trial court’s
judgment. TEX. R. APP. P. 43.2. We modify the trial court’s judgment to show May pled not true
to the enhancement allegations.
In the Anders context, once we determine that the appeal is without merit, we must affirm
the trial court’s judgment. Id.
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We modify the judgment to reflect May’s plea that the enhancement allegations were not
true and affirm the judgment as so modified. 1
Josh R. Morriss, III
Chief Justice
Date Submitted: June 10, 2019
Date Decided: June 19, 2019
Do Not Publish
1
Since we agree that this case presents no reversible error, we also, in accordance with Anders, grant counsel’s request
to withdraw from further representation of appellant in this case. See Anders, 386 U.S. at 744. No substitute counsel
will be appointed. Should appellant desire 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 (1) must be filed within thirty days from either the date of this opinion
or the date on which the last timely motion for rehearing was overruled by this Court, see TEX. R. APP. P. 68.2, (2) must
be filed with the clerk of the Texas Court of Criminal Appeals, see TEX. R. APP. P. 68.3, and (3) should comply with
the requirements of Rule 68.4 of the Texas Rules of Appellate Procedure, see TEX. R. APP. P. 68.4.
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