SIDNEY DAUNELL DARRELL v. THE STATE OF TEXAS (2017)

MEMORANDUM OPINION

Appellant, Sidney Daunell Darrell, with an agreement from State that punishment be capped at thirty years, pleaded no contest to the felony offense of serious bodily injury to a child by omission ¹ and true to the allegation in an enhancement paragraph that he had been previously convicted of the felony offense of burglary of a habitation. The trial found appellant guilty, assessed punishment at confinement for thirty years, and certified that appellant had the right to appeal.

Appellant's appointed counsel on appeal has filed a motion to withdraw, along with a brief stating that the record presents no reversible error and the appeal is without merit and is frivolous. See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396 (1967).

Counsel's brief meets the Anders requirements by presenting a professional evaluation of the record and supplying us with references to the record and legal authority. See id. at 744, 87 S. Ct. at 1400; see also High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. 1978). Counsel indicates that he has thoroughly reviewed the record and is unable to advance any grounds of error that warrant reversal. See Anders, 386 U.S. at 744, 87 S. Ct. at 1400; Mitchell v. State, 193 S.W.3d 153, 155 (Tex. App.—Houston [1st Dist.] 2006, no pet.).

Counsel has informed the Court that he delivered a copy of the brief and motion to withdraw to appellant and informed him of his right to examine the appellate record and file a response to counsel's Anders brief. See Kelly v. State, 436 S.W.3d 313, 319 (Tex. Crim. App. 2014) (citations omitted); In re Schulman, 252 S.W.3d 403, 408 (Tex. Crim. App. 2008) (citations omitted). This Court granted appellant's pro se motion to access the appellate record and extend the time for filing a response, and a copy of the appellate record was sent to appellant. See Kelly, 436 S.W.3d at 319 (citations omitted). Appellant has not filed a response to his counsel's Anders brief.

We have independently reviewed the entire record in this appeal, and we conclude that no reversible error exists in the record, there are no arguable grounds for review, and the appeal is frivolous. See Anders, 386 U.S. at 744, 87 S. Ct. at 1400 (emphasizing reviewing court—and not counsel—determines, after full examination of proceedings, whether appeal is wholly frivolous); Garner v. State, 300 S.W.3d 763, 767 (Tex. Crim. App. 2009) (reviewing court must determine whether arguable grounds for review exist); Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim. App. 2005) (same); Mitchell, 193 S.W.3d at 155 (reviewing court determines whether arguable grounds exist by reviewing entire record). We note that an appellant may challenge a holding that there are no arguable grounds for appeal by filing a petition for discretionary review in the Texas Court of Criminal Appeals. See Bledsoe, 178 S.W.3d at 827 & n.6.

Although not an arguable issue, counsel's brief notes that the trial court's written judgment does not accurately comport with the record in this case. The judgment states that appellant pleaded “guilty” to the felony offense of serious bodily injury to a child. However, the record reflects that appellant pleaded “no contest.” We have the authority to modify a judgment when we have the necessary information before us to do so. See TEX. R. APP. P. 42.3(b); French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992); Edwards v. State, 497 S.W.3d 147, 164 (Tex. App.—Houston [1st Dist.] 2016, pet. ref'd) (citations omitted). Accordingly, we modify the trial court's judgment to reflect that appellant pleaded “no contest” to the felony offense of “Injury to Child-SBI.”

We affirm the judgment of the trial court as modified and grant counsel's motion to withdraw.² Attorney Kyle R. Sampson must immediately send appellant the required notice and file a copy of the notice with the Clerk of this Court. See TEX. R. APP. P. 6.5(c). We dismiss any pending motions as moot.

FOOTNOTES

1.   See TEX. PENAL CODE ANN. § 22.04(a)(1), (b)(2) (Vernon 2011).

2.   Appointed counsel still has a duty to inform appellant of the result of this appeal and that he may, on his own, pursue discretionary review in the Texas Court of Criminal Appeals. See Ex Parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997).

PER CURIAM