Rodney Dewayne Duffey v. State of Texas ( 2018 )

Affirmed as modified; Opinion Filed August 6, 2018.
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-17-01446-CR
No. 05-17-01448-CR
RODNEY DEWAYNE DUFFEY, Appellant
V.
STATE OF TEXAS, Appellee
On Appeal from the 291st Judicial District Court
Dallas County, Texas
Trial Court Cause Nos. F09-35306-U, F13-35623-U
MEMORANDUM OPINION
Before Justices Lang, Myers, and Stoddart
Opinion by Justice Stoddart
Appellant Rodney Dewayne Duffey appeals his convictions, following adjudication of his
guilt, for assault involving family violence by impeding the complainant’s breathing and evading
arrest or detention enhanced. The trial court assessed punishment at eight years’ imprisonment in
each case. On appeal, appellant’s attorney filed a brief in which she concludes the appeals are
wholly frivolous and without merit. The brief meets the requirements of Anders v. California, 386
U.S. 738 (1967). The brief presents a professional evaluation of the record showing why, in effect,
there are no arguable grounds to advance. See High v. State, 573 S.W.2d 807, 812 (Tex. Crim.
App. [Panel Op.] 1978) (determining whether brief meets requirements of Anders). Counsel
delivered a copy of the brief to appellant. We advised appellant of his right to file a pro se response,
but he did not file a pro se response. See Kelly v. State, 436 S.W.3d 313, 319–21 (Tex. Crim. App.
2014) (noting appellant has right to file pro se response to Anders brief filed by counsel).
We have reviewed the record and counsel’s brief. See Bledsoe v. State, 178 S.W.3d 824,
826–27 (Tex. Crim. App. 2005) (explaining appellate court’s duty in Anders cases). We agree the
appeals are frivolous and without merit. We find nothing in the record that might arguably support
the appeals.
Although not an arguable issue, we note the judgments adjudicating guilt incorrectly recite
there were plea bargain terms in these cases. The record, however, shows appellant entered an
open plea of true to the allegations in the motion to adjudicate in each case. Accordingly, on our
own motion, we modify the judgments to show appellant entered open pleas of true.
We also note the trial court’s judgment in cause no. 05-17-01448-CR fails to show the
offense was enhanced by two prior felony convictions. The indictment also included two prior
felony convictions for possession of a controlled substance, thus enhancing the punishment to that
for a third-degree felony offense. See TEX. PENAL CODE ANN. § 12.425(a) (West Supp. 2017). At
the hearing on the State’s motion to adjudicate, the trial court admonished appellant that “its
evading enhanced and you pled true to two enhancement paragraphs. So that is a third degree
felony as well.” Accordingly, on our own motion, we modify the judgment adjudicating guilt to
show appellant pleaded true to two enhancement paragraphs and the trial court found the
enhancement paragraphs true. TEX. R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27–28
(Tex. Crim. App. 1993) (courts of appeals have authority to modify a judgment); Estrada v. State,
334 S.W.3d 57, 63–64 (Tex. App.—Dallas 2009, no pet.) (same).
CONCLUSION
In cause no. 05-17-01446-CR, we modify the section of the judgment adjudicating guilt
entitled “Terms of Plea Bargain” to show “Open.”
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In cause no. 05-17-01448-CR, we modify the section of the judgment adjudicating guilt
entitled “Terms of Plea Bargain” to show “Open” and we add the following sections: “Plea to 1st
Enhancement Paragraph: True,” “Findings on 1st Enhancement Paragraph: True,” “Plea to 2nd
Enhancement/Habitual Paragraph: True,” and “Findings on 2nd Enhancement/Habitual Paragraph:
True.”
As modified, we affirm the trial court’s judgments adjudicating guilt.
/Craig Stoddart/
CRAIG STODDART
JUSTICE
Do Not Publish
TEX. R. APP. P. 47
171446F.U05
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
RODNEY DEWAYNE DUFFEY, On Appeal from the 291st Judicial District
Appellant Court, Dallas County, Texas
Trial Court Cause No. F09-35306-U.
No. 05-17-01446-CR V. Opinion delivered by Justice Stoddart.
Justices Lang and Myers participating.
STATE OF TEXAS, Appellee
Based on the Court’s opinion of this date, the judgment adjudicating guilt of the trial
court is MODIFIED as follows:
The section entitled “Terms of Plea Bargain” is modified to show “Open.”
As modified, we AFFIRM the trial court’s judgment adjudicating guilt.
Judgment entered this 6th day of August, 2018.
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
RODNEY DEWAYNE DUFFEY, On Appeal from the 291st Judicial District
Appellant Court, Dallas County, Texas
Trial Court Cause No. F13-35623-U.
No. 05-17-01448-CR V. Opinion delivered by Justice Stoddart.
Justices Lang and Myers participating.
STATE OF TEXAS, Appellee
Based on the Court’s opinion of this date, the judgment adjudicating guilt of the trial
court is MODIFIED as follows:
The section entitled “Terms of Plea Bargain” is modified to show “Open.”
Add section: “Plea to 1st Enhancement Paragraph: True.”
Add section: “Findings on 1st Enhancement Paragraph: True.”
Add section: “Plea to 2nd Enhancement/Habitual Paragraph: True.”
Add section: “Findings on 2nd Enhancement/Habitual Paragraph: True.”
As modified, we AFFIRM the trial court’s judgment adjudicating guilt.
Judgment entered this 6th day of August, 2018.
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