Lathaniel Joseph Dalcour v. State

Opinion issued April 29, 2004











In The

Court of Appeals

For The

First District of Texas

____________


NO. 01-03-00184-CR

 ____________


LATHANIEL JOSEPH DALCOUR, Appellant


V.


THE STATE OF TEXAS, Appellee





On Appeal from the 182nd District Court

Harris County, Texas

Trial Court Cause No. 925073




 

MEMORANDUM OPINION

               A jury convicted appellant of possession of more than four grams and less than 400 grams of methamphetamine. Appellant reached an agreement with the State for a sentence of five years’ confinement, which the trial court followed. Appellant filed timely notice of appeal and posted an appeal bond. Only the clerk’s record has been filed.

               On February 2, 2004, appellant’s retained counsel, Kennitra M. Foote, filed a motion to withdraw as counsel because appellant failed to comply with the terms of their employment agreement and failed to pay for the reporter’s record, leaving counsel unable to prepare a proper brief. See McCoy v. Court of Appeals of Wisconsin, Dist. 1, 486 U.S. 429, 437, 108 S. Ct. 1895, 1901 (1988). We granted the motion on February 12, 2004. We further notified appellant in our February 12 order, as follows:

We notify appellant at his last known address, as provided in counsel’s motion, that his brief is due in this Court no later than March 5, 2004. Unless appellant retains counsel who files a brief on or before that date, or unless by that date a motion for extension of time to file the brief has been filed and granted, this appeal will be set for submission and considered by the Court without briefs on the clerk’s record alone.


               As of this date, we have received no response. Accordingly, we consider the appeal without briefs. Only the clerk’s record is presented for review. We have reviewed the record for fundamental error and find none. See Ashcraft v. State, 802 S.W.2d 905, 906 (Tex. App.—Fort Worth 1991, no pet.); Meza v. State, 742 S.W.2d 708, 708-09 (Tex. App.—Corpus Christi 1987, no pet.).

               However, we do find error in the trial court’s judgment. The judgment states that appellant entered a plea of guilty. The court’s charge to the jury, however, reflects that appellant entered a plea of not guilty, but was found guilty by the jury. We may correct and modify the judgment of a trial court to make the record speak the truth when we have the necessary data and information to do so, or to make any appropriate order as the law and nature of the case may require. See Campbell v. State, 900 S.W.2d 763, 773 (Tex. App.—Waco 1995, no pet.); Tex. R. App. P. 43.2(b), 43.6. Accordingly, we modify the trial court’s judgment to read that appellant entered a plea of not guilty.

               We affirm the judgment, as modified.

PER CURIAM

Panel consists of Justices Taft, Hanks, and Higley.

Do not publish. Tex. R. App. P. 47.2(b).