Vonderrick Allen v. State

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-20-00072-CR
VONDERRICK ALLEN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 102nd District Court
Bowie County, Texas
Trial Court No. 18F0917-102
Before Morriss, C.J., Burgess and Stevens, JJ.
Memorandum Opinion by Chief Justice Morriss
MEMORANDUM OPINION
While Vonderrick Allen was on community supervision,1 the State moved to revoke his
community supervision and to proceed to an adjudication of his guilt on allegations that he again
possessed drugs and evaded arrest. After an evidentiary hearing, the trial court found the State’s
allegations true, adjudicated Allen’s guilt, sentenced him to twenty years’ incarceration, and
ordered him to pay a $2,000.00 fine. Allen appeals.2
Allen’s attorney has filed a brief stating that he 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 trial court proceedings.
Since counsel has provided a professional evaluation of the record demonstrating why there are
no arguable grounds to be advanced, he has met his legal obligations. See 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.
On September 7, 2020, counsel mailed to Allen copies of the brief and the motion to
withdraw and represented that he was mailing a complete paper copy of the appellate record by
separate parcel. Allen was informed of his rights to review the record and file a pro se response.
1
Allen had pled guilty to possession of less than one gram of methamphetamine and admitted that the State’s
punishment enhancement allegations against him were true. Pursuant to a plea agreement, Allen was placed on
deferred adjudication community supervision for a period of ten years.
2
In our companion cause number 06-20-00074-CR, Allen also appeals from another conviction of possession of less
than one gram of methamphetamine. We dispose of that appeal by separate opinion.
2
By letter dated September 8, 2020, this Court informed Allen that any motion for pro se access to
the appellate record was due on or before October 8, that his pro se brief was due on or before
December 4, and that the case would be set for submission on the briefs on December 30. We
received neither a pro se response from Allen nor a motion requesting an extension of time in
which to file such a response.
We have reviewed the entire appellate record and have independently determined that no
reversible error exists. See Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim. App. 2005).
However, we find nonreversible errors described below.
The trial court did not pronounce a fine during sentencing, but a $2,000.00 fine was
included in the trial court’s judgment. The judgment also mistakenly states that Allen’s offense
is a second-degree felony, instead of a state-jail felony, and reflects that the trial court’s sentence
was the result of a plea agreement during the adjudication. In Anders cases, appellate courts
“have the authority to reform judgments and affirm as modified in cases where there is
nonreversible error.” Ferguson v. State, 435 S.W.3d 291, 294 (Tex. App.—Waco 2014, pet.
struck) (comprehensively discussing appellate cases that have modified judgments in Anders
cases).
First, we must modify the trial court’s judgment by deleting the $2,000.00 fine. Because
fines are punitive and intended to be a part of the defendant’s sentence, they “generally must be
orally pronounced in the defendant’s presence.” Armstrong v. State, 340 S.W.3d 759, 767 (Tex.
Crim. App. 2011) (citing TEX. CODE CRIM. PROC. ANN. art. 42.03, § 1(a); Taylor v. State, 131
S.W.3d 497, 500 (Tex. Crim. App. 2004)). When there is a conflict between the oral
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pronouncement of sentence in open court and the written judgment, the oral pronouncement
controls. See Taylor v. State, 131 S.W.3d 497, 502 (Tex. Crim. App. 2004) (citing Thompson v.
State, 108 S.W.3d 287, 290 (Tex. Crim. App. 2003)).
Second, possession of less than one gram of methamphetamine is a state-jail felony.
TEX. HEALTH & SAFETY CODE ANN. § 481.115(b). Due to the State’s punishment enhancement
allegations, Allen’s state-jail felony became punishable as a second-degree felony. See TEX.
PENAL CODE ANN. § 12.425(b). Even so, “statutes enhancing punishment ranges for the primary
offense do ‘not increase the severity level or grade of the primary offense.’” Bledsoe v. State,
480 S.W.3d 638, 642 n.11 (Tex. App.—Texarkana 2015, pet. ref’d) (quoting Ford v. State, 334
S.W.3d 230, 234 (Tex. Crim. App. 2011)). As a result, although the State’s punishment
enhancement allegations elevated Allen’s range of punishment, the degree of offense remained
the same. We, therefore, modify the trial court’s judgment to reflect that Allen was convicted of
a state-jail felony.
Third, under a section labeled “Terms of Plea Bargain,” the judgment states, “TWENTY
(20) YEARS TEXAS DEPARTMENT OF CRIMINAL JUSTICE INSTITUTIONAL
DIVISION; TO RUN CONCURRENTLY WITH 19F0184-102.” Allen’s twenty-year sentence
was not the result of a plea agreement. Therefore, we delete this language from the “Terms of
Plea Bargain” section and place it instead under the section of the judgment labeled “Punishment
and Place of Confinement.”
We modify the trial court’s judgment by deleting the $2,000.00 fine, to reflect that
Allen’s offense is a state-jail felony, not a second-degree felony, and by removing the language
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stating, “TWENTY (20) YEARS TEXAS DEPARTMENT OF CRIMINAL JUSTICE
INSTITUTIONAL DIVISION; TO RUN CONCURRENTLY WITH 19F0184-102” from the
“Terms of Plea Bargain” section and placing it under the “Punishment and Place of
Confinement” section. As modified, the judgment of the trial court is affirmed.3
Josh R. Morriss, III
Chief Justice
Date Submitted: December 30, 2020
Date Decided: January 7, 2021
Do Not Publish
3
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, appellant 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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