Corey Dion McDonald v. State

In The Court of Appeals

Sixth Appellate District of Texas at Texarkana

No. 06-16-00117-CR COREY DION MCDONALD, Appellant

V. THE STATE OF TEXAS, Appellee On Appeal from the 6th District Court

Lamar County, Texas Trial Court No. 26560

Before Morriss, C.J., Moseley and Burgess, JJ.

Memorandum Opinion by Justice Moseley

MEMORANDUM OPINION

Corey Dion McDonald appeals his conviction for possession of one gram or more but less than four grams of a controlled substance in Penalty Group 1. See TEX. HEALTH & SAFETY CODE ANN. § 481.115(c) (West 2010). Pursuant to his plea agreement, McDonald pled guilty to possession of the controlled substance and pled true to two prior felony convictions alleged in the indictment. See TEX. PENAL CODE ANN. § 12.42(a) (West Supp. 2016). He was sentenced to thirty-five years’ imprisonment. McDonald was represented by the same appointed counsel both at trial and on appeal.1

McDonald’s attorney on appeal has filed a brief which discusses the record and reviews the proceedings in detail. The brief sets out the procedural history and summarizes the evidence elicited during the course of the proceeding. Meeting the requirements of Anders v. California, counsel has provided a professional evaluation of the record demonstrating why there are no arguable grounds to be advanced. 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 has also filed a motion with this Court seeking to withdraw as counsel in this appeal.

Counsel provided McDonald with a copy of the brief, the appellate record, and the motion to withdraw. Counsel also informed McDonald of his right to file a pro se response and of his right to review the record. McDonald’s pro se response, if any, was due on or before October 3, 2016. McDonald has neither filed a pro se response nor requested an extension of time in which to file such a response.

We have determined that this appeal is wholly frivolous. We have independently reviewed the clerk’s record and the reporter’s record, and we agree that no arguable issues support an appeal. See Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim. App. 2005).

In the Anders context, once we determine that the appeal is without merit and is frivolous, we must either dismiss the appeal or affirm the trial court’s judgment. See Anders, 386 U.S. 738.

In this case, we shall modify the judgment to reflect the correct statute for the offense of possession of one gram or more but less than four grams of a controlled substance in Penalty Group 1, the offense for which McDonald was convicted. The judgment lists the statute for this offense as Section 481.112(c) of the Texas Health and Safety Code, pertaining to possession of a controlled substance with intent to deliver. TEX. HEALTH & SAFETY CODE ANN. § 481.112(a), (c) (West 2010). The correct statute for the offense of possession of one gram or more but less than four grams of a controlled substance in Penalty Group 1 is Section 481.115(c) of the Texas Health and Safety Code. See TEX. HEALTH & SAFETY CODE ANN. § 481.115(c). The Texas Rules of Appellate Procedure give this Court authority to modify judgments to correct errors and make the record speak the truth. TEX. R. APP. P. 43.2(b); French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992); Rhoten v. State, 299 S.W.3d 349, 356 (Tex. App.—Texarkana 2009, no pet.); Gray v. State, 628 S.W.2d 228, 233 (Tex. App.—Corpus Christi 1982, pet. ref’d). Therefore, we hereby modify the judgment to indicate that the correct statute for the offense of which McDonald was convicted is Section 481.115(c) of the Texas Health and Safety Code. See TEX. HEALTH & SAFETY CODE ANN. § 481.115(c).

As modified, we affirm the judgment of the trial court.2

Bailey C. Moseley Justice

Date Submitted: November 10, 2016 Date Decided: November 14, 2016 Do Not Publish