Mark Green v. State

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-12-00225-CR Mark Green, Appellant v. The State of Texas, Appellee

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 299TH JUDICIAL DISTRICT NO. D-1-DC-10-904077, THE HONORABLE CHARLES F. BAIRD, JUDGE PRESIDING

MEMORANDUM OPINION A jury convicted Mark Green of evading arrest with a prior conviction for evading arrest, a state jail felony offense. See Act of June 19, 2009, 81st Leg., R.S., ch. 1400, § 4, 2009 Tex. Gen. Laws 4385, 4385–86 (amended 2011) (current version at Tex. Penal Code Ann. § 38.04(a), (b)(1)(A) (West 2011)). The jury found the enhancement paragraphs alleging two previous sequential non-state jail felony convictions to be true and, pursuant to the state jail habitual offender punishment provision of the penal code, assessed Green’s punishment at confinement for six years in the Texas Department of Criminal Justice. See Act of May 29, 1995, 74th Leg., R.S., ch. 318, § 4, 1995 Tex. Gen. Laws 2734, 2734–35 (amended 2011) (current version at Tex. Penal Code Ann. § 12.425 (West 2011)) (providing that at trial of unaggravated state jail felony, defendant shall be punished for second degree felony upon proof of two previous sequential felony convictions).

Green’s court-appointed attorney has filed a motion to withdraw supported by a brief concluding that the appeal is frivolous and without merit. The brief meets the requirements of Anders v. California by presenting a professional evaluation of the record demonstrating why there are no arguable grounds to be advanced. See Anders v. California, 386 U.S. 738, 744 (1967); Garner v. State, 300 S.W.3d 763, 766 (Tex. Crim. App. 2009); see also Penson v. Ohio, 488 U.S. 75 (1988). Green’s counsel provided a copy of the brief to his client and advised Green of his right to examine the appellate record and file a pro se brief. See Anders, 386 U.S. at 744; Garner, 300 S.W.3d at 766. No pro se brief or other written response has been filed.

We have conducted an independent review of the record and reviewed counsel’s brief. We find no reversible error. See Anders, 386 U.S. at 744; Garner, 300 S.W.3d at 766; Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005). We agree with counsel that the record presents no arguably meritorious grounds for review and the appeal is frivolous. Counsel’s motion to withdraw is granted.

However, we note that the judgment of conviction contains clerical errors. The record reflects that at the punishment phase of trial Green pled “True” to the allegations contained in the enhancement paragraphs of the indictment. The record further reflects that the jury found the allegations in the enhancement paragraphs to be true. However, the judgment reflects “N/A” as to both the plea and findings regarding the enhancement paragraphs.

This Court has authority to modify incorrect judgments when the necessary information is available to do so. See Bigley v. State, 865 S.W.2d 26, 27–28 (Tex. Crim. App. 1993); Tex. R. App. P. 43.2(b). Accordingly, we modify the judgment to reflect that Green pled “True” to the enhancement paragraphs of the indictment and to reflect that the findings on the enhancement paragraphs were true.1 See Britton v State, No. 02-10-00299-CR, 2011 WL 4345288, at *1 (Tex. App.—Fort Worth Sept. 15, 2011) (mem. op., not designated for publication) (modifying judgment to reflect proper plea to enhancement paragraphs before affirming conviction in frivolous appeal under Anders).

As modified, the judgment of conviction is affirmed.

__________________________________________ Melissa Goodwin, Justice

Before Chief Justice Jones, Justices Rose and Goodwin Modified and, as Modified, Affirmed Filed: December 6, 2012 Do Not Publish