COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-10-00299-CR
DONALD RAY BRITTON APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 355TH DISTRICT COURT OF HOOD COUNTY
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MEMORANDUM OPINION1
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A jury convicted Appellant Donald Ray Britton of driving while intoxicated–
subsequent offense, found the enhancement allegation true, and sentenced him
to twenty years’ confinement. Britton’s court-appointed appellate counsel has
filed a motion to withdraw as counsel and a brief in support of that motion. In the
brief, counsel avers that in his professional opinion, the appeal is frivolous.
Counsel’s brief and motion meet the requirements of Anders v. California by
1
See Tex. R. App. P. 47.4.
presenting a professional evaluation of the record demonstrating why there are
no arguable grounds for relief. See 386 U.S. 738, 87 S. Ct. 1396 (1967). Britton
filed a pro se brief raising several issues. The State declined to submit a brief.
Once an appellant’s court-appointed attorney files a motion to withdraw on
the ground that the appeal is frivolous and fulfills the requirements of Anders, this
court is obligated to undertake an independent examination of the record. See
Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991); Mays v. State,
904 S.W.2d 920, 922–23 (Tex. App.—Fort Worth 1995, no pet.). Only then may
we grant counsel’s motion to withdraw. See Penson v. Ohio, 488 U.S. 75, 82–
83, 109 S. Ct. 346, 351 (1988).
We have carefully reviewed the record, counsel’s brief, and Britton’s briefs.
The judgment contains a clerical error. The indictment contains two
enhancement paragraphs, and the judgment reflects that Britton entered pleas of
―True‖ to the first and second enhancement paragraphs and that the jury made a
finding of ―True‖ to both enhancement paragraphs. The record, however, reflects
that Britton entered a plea of ―Not true‖ to the first enhancement paragraph and
that he did not enter any plea to the second enhancement paragraph. 2 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
2
Indeed, the charge on punishment references only the first enhancement
paragraph when instructing the jury on the range of punishment for a second
degree felony, and the verdict form that the jury signed states that the jury found
that ―Enhancement Paragraph One is true.‖
2
appropriate order as the law and nature of the case may require. Davis v. State,
No. 01-02-00404-CR, 2003 WL 139655, at *1 (Tex. App.—Houston [1st Dist.]
Jan. 9, 2003, no pet.) (mem. op., not designated for publication) (modifying
judgment in Anders appeal to reflect proper plea). Accordingly, we modify the
judgment of conviction to reflect (1) that Britton entered a plea of ―NOT TRUE‖ to
the first enhancement paragraph; (2) that the plea to the second enhancement
paragraph is ―N/A‖; and (3) that the finding on the second enhancement
paragraph is ―N/A.‖ See id.; see also Alexander v. State, 301 S.W.3d 361, 364
(Tex. App.—Fort Worth 2009, no pet.) (modifying judgment in Anders appeal);
Glenn v. State, No. 01-07-01056, 2009 WL 1688198, at *3 (Tex. App.—Houston
[1st Dist.] June 18, 2009, pet ref’d) (mem. op., not designated for publication)
(modifying judgment to reflect proper pleas and finding to enhancement
paragraphs).
Except for the necessary modification to the judgment, we agree with
counsel that this appeal is wholly frivolous and without merit; we find nothing else
in the record that arguably might support an appeal. See Bledsoe v. State, 178
S.W.3d 824, 827–28 (Tex. Crim. App. 2005); see also Alexander, 301 S.W.3d at
364.
3
Accordingly, we grant counsel’s motion to withdraw and affirm the trial
court’s judgment as modified.
BILL MEIER
JUSTICE
PANEL: DAUPHINOT, GARDNER, and MEIER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: September 15, 2011
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