ERIC DALE BAILEY v. THE STATE OF TEXAS

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Court of Appeals of Texas, Texarkana.

ERIC DALE BAILEY, Appellant v. THE STATE OF TEXAS, Appellee

No. 06-17-00052-CR

Decided: August 25, 2017

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

MEMORANDUM OPINION

Eric Dale Bailey entered an open guilty plea to the charge of arson, see TEX. PENAL CODE ANN. § 28.02(a) (West 2011), and was sentenced by the trial court to fifteen years' imprisonment.

Bailey's appellate attorney filed a brief setting out the procedural history of the case, summarizing the evidence elicited during the course of the trial court proceedings, and stating that counsel found no meritorious issues to raise on appeal. Meeting the requirements of Anders v. California, counsel has provided a professional evaluation of the record demonstrating why there are no plausible appellate issues to be advanced. 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.

Counsel provided Bailey with copies of the brief, the appellate record, and the motion to withdraw. Counsel also informed Bailey of his right to review the appellate record and to file a pro se response to counsel's brief, should he so desire. Bailey was advised that his pro se response, if any, was due on or before July 19, 2017. Bailey has not filed a pro se response and has not requested an extension of time in which to file such a response.

However, in Anders cases, appellate courts “have the authority to reform judgments and affirm as modified in cases where there is non reversible error.” Ferguson v. State, 435 S.W.3d 291, 293–94 (Tex. App.—Waco 2014, pet. struck) (comprehensively discussing appellate cases that have modified judgments in Anders cases). Here, the judgment of conviction lists the degree of offense as a first degree felony. In fact, Bailey was tried for, and convicted of, the second degree felony offense of arson.1 See TEX. PENAL CODE ANN. § 28.02(a). Although the enhancement allegation increased the punishment range, making the offense punishable in the same manner as a first degree offense, the degree of the offense remained the same. See TEX. PENAL CODE ANN. § 12.42(b) (West Supp. 2016). We, therefore, modify the judgment to reflect the correct degree of the offense as a second degree felony.

We have independently reviewed the entire appellate record and, like counsel, have determined that no reversible error exists. Accordingly, we modify the trial court's judgment to reflect the correct degree of the offense as a second degree felony.

As modified, we affirm the trial court's judgment.2

FOOTNOTES

1.   Section 28.02(d) provides than an offense under subsection (a) is a second degree felony, “except that the offense is a felony of the first degree if it is shown” at trial that:(1) bodily injury or death was suffered by any person by reason of the commission of the offense; or(2) the property intended to be damaged or destroyed by the actor was a habitation or a place of assembly or worship.TEX. PENAL CODE ANN. § 28.02(d). The record is devoid of proof of any fact that would elevate this offense to that of a first degree felony.

2.   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.

Ralph K. Burgess Justice