eLaws | Code of Federal Regulations | United States Code |
 All Courts
 State Courts
 Court of Appeals of Texas
 2002-09

Shirley Duroso Keefer v. State ( 2002 )


Menu:

















  • In The

    Court of Appeals

    Sixth Appellate District of Texas at Texarkana



    ______________________________


    No. 06-02-00120-CR

    ______________________________




    SHIRLEY DUROSO KEFFER, a/k/a

    SHIRLEY KEEFER, Appellant


    V.


    THE STATE OF TEXAS, Appellee




    On Appeal from the 124th Judicial District Court

    Gregg County, Texas

    Trial Court No. 29065-B








    Before Morriss, C.J., Grant and Ross, JJ.

    Opinion by Justice Ross


    O P I N I O N


    Shirley Duroso Keffer, a/k/a Shirley Keefer, appellant, has filed a motion asking this Court to dismiss her appeal. Pursuant to Tex. R. App. P. 42.2, her motion is granted.

    The appeal is dismissed.



    Donald R. Ross

    Justice



    Date Submitted: September 17, 2002

    Date Decided: September 18, 2002



    Do Not Publish

    Roman">

    Memorandum Opinion by Justice Moseley


    MEMORANDUM OPINION



    Danny C. Johnson appeals from his conviction on his open plea of guilty to assault. See Tex. Penal Code Ann. § 22.01 (Vernon Supp. 2008). After finding true the enhancement paragraphs in the indictment, Johnson was sentenced by the trial court to five years' imprisonment. See Tex. Penal Code Ann. § 12.33 (Vernon 2003). Johnson was represented by different, appointed, counsel at trial and on appeal.

    Johnson's attorney has filed a brief which discusses the record and reviews the proceedings. Counsel has thus provided a professional evaluation of the record demonstrating why, in effect, there are no arguable grounds to be advanced. This meets the requirements of Anders v. California, 386 U.S. 738 (1967); Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991); and High v. State, 573 S.W.2d 807 (Tex. Crim. App. [Panel Op.] 1978).

    Counsel mailed a copy of the brief to Johnson on January 6, 2009, informing Johnson of his right to examine the entire appellate record and to file a pro se response. Counsel simultaneously filed a motion with this Court seeking to withdraw as counsel in this appeal. Johnson has not filed a pro se response, nor has he 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).

    We do note, however, that the trial court's judgment in this case indicates the degree of the offense is a "2nd Degree Felony." This offense is a third-degree felony. See Tex. Penal Code Ann. § 22.01(b)(2). The punishment range was correctly enhanced to that of a second-degree felony. See Tex. Penal Code Ann. § 12.42(a)(3). This Court has the authority to reform the judgment to make the record speak the truth when the matter has been called to our attention by any source. French v. State, 830 S.W.2d 607 (Tex. Crim. App. 1992). In Asberry v. State, 813 S.W.2d 526 (Tex. App.--Dallas 1991, pet. ref'd), the court noted that the authority of the appellate court to reform incorrect judgments is not dependent on request of any party; the appellate court may act sua sponte. The Texas Rules of Appellate Procedure provide direct authority for this Court to modify the judgment of the trial court. Tex. R. App. P. 43.2.

    Therefore, we hereby reform the judgment to indicate the correct degree of the offense as a third-degree felony.

    As reformed, we affirm the judgment of the trial court. (1)  







    Bailey C. Moseley

    Justice



    Date Submitted: March 16, 2009

    Date Decided: March 17, 2009



    Do Not Publish

    1. Since we agree this case presents no reversible error, we also, in accordance with Anders, grant counsel's request to withdraw from further representation of Johnson in this case. No substitute counsel will be appointed. Should Johnson wish to seek further review of this case by the Texas Court of Criminal Appeals, Johnson must either retain an attorney to file a petition for discretionary review or Johnson must file a pro se petition for discretionary review. Any petition for discretionary review must be filed within thirty days from the date of either this opinion or the last timely motion for rehearing that was overruled by this Court. See Tex. R. App. P. 68.2. Any petition for discretionary review must be filed with this Court, after which it will be forwarded to the Texas Court of Criminal Appeals along with the rest of the filings in this case. See Tex. R. App. P. 68.3. Any petition for discretionary review should comply with the requirements of Rule 68.4 of the Texas Rules of Appellate Procedure. See Tex. R. App. P. 68.4.