Dylan Ledale Madkins v. the State of Texas ( 2023 )

NO. 12-22-00182-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
DYLAN LEDALE MADKINS, § APPEAL FROM THE 145TH
APPELLANT
V. § JUDICIAL DISTRICT COURT
THE STATE OF TEXAS,
APPELLEE § NACOGDOCHES COUNTY, TEXAS
MEMORANDUM OPINION
PER CURIAM
Dylan Ledale Madkins appeals his conviction for possession of a controlled substance.
Appellant’s counsel filed a brief in compliance with Anders v. California, 386 U.S. 738, 87 S.
Ct. 1396, 18 L. Ed. 2d 493 (1967) and Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App.
1969). We modify the trial court’s judgment and affirm as modified.
BACKGROUND
Appellant was charged by indictment with possession of methamphetamine in an amount
of one gram or more, but less than four grams, a third-degree felony. 1 The indictment included
one felony enhancement paragraph, which alleged that Appellant was previously convicted of
possession of a controlled substance. Appellant pleaded “not guilty,” and the case proceeded to
a jury trial.
Sergeant Austin Taylor McDonald of the Nacogdoches County Sheriff’s Office testified
that he and his partner stopped a vehicle driven by Appellant because the headlights on the
vehicle were not sufficiently bright and the vehicle drove onto the improved shoulder. Appellant
informed McDonald that he possessed a pocketknife, but McDonald did not feel a knife while
1
See TEX. HEALTH & SAFETY CODE ANN. § 481.115(a), (c) (West Supp. 2022).
patting down Appellant. Appellant consented to McDonald searching his pockets, and
McDonald found a pouch that contained methamphetamine, marijuana, and pills. Robert John
Prince, Jr., a forensic scientist with the Texas Department of Public Safety Crime Lab, testified
that testing revealed that the substance recovered from Appellant’s possession was
methamphetamine in the amount of 2.08 grams.
Following the presentation of evidence and arguments of counsel, the jury found
Appellant guilty of possession of a controlled substance as charged in the indictment, and the
matter proceeded to a trial on punishment. Appellant pleaded “true” to the enhancement
paragraph, and the jury ultimately assessed punishment at twenty years of confinement. 2 The
trial judge sentenced Appellant in accordance with the jury’s verdict. This appeal followed.
ANALYSIS PURSUANT TO ANDERS V. CALIFORNIA
Appellant’s counsel filed a brief in compliance with Anders and Gainous, stating that he
diligently reviewed the appellate record and is of the opinion that the record reflects no
reversible error and that there is no error upon which an appeal can be predicated. Counsel
further states that he is well acquainted with the facts in this case. In compliance with Anders,
Gainous, and High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. 1978), counsel’s brief
presents a chronological summation of the procedural history of the case and states that counsel
is unable to raise any arguable issues for appeal. 3 We likewise reviewed the record for reversible
error and found none. See Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005).
We note, however, that the trial court’s written judgment incorrectly reflects that
Appellant pleaded “not true” to the enhancement paragraph. We have the authority to modify a
judgment to speak the truth when we have the necessary information before us to do so. See
TEX. R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993); Asberry
v. State, 813 S.W.2d 526, 529 (Tex. App.—Dallas 1991, pet. ref’d). Because we have the
necessary data and information to correct the judgment’s recitation of Appellant’s plea to the
enhancement paragraph, we conclude that the judgment should be modified to reflect that
2
See TEX. PENAL CODE ANN. §§ 12.34, 12.42(a) (West 2019).
3
In compliance with Kelly v. State, Appellant’s counsel provided Appellant with a copy of the brief,
notified Appellant of his motion to withdraw as counsel, informed Appellant of his right to file a pro se response,
and took concrete measures to facilitate Appellant’s review of the appellate record. See Kelly v. State, 436 S.W.3d
313, 319 (Tex. Crim. App. 2014). Appellant was given time to file his own brief. The time for filing such a brief has
expired and no pro se brief has been filed.
2
Appellant pleaded “true” to the enhancement paragraph. See TEX. R. APP. P. 43.2(b); Bigley,
865 S.W.2d at 27-28; Asberry, 813 S.W.2d at 529.
CONCLUSION
As required by Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991), Appellant’s
counsel has moved for leave to withdraw. See also In re Schulman, 252 S.W.3d 403, 407 (Tex.
Crim. App. 2008) (orig. proceeding). We carried the motion for consideration with the merits.
Having done so and finding no reversible error, we grant counsel’s motion for leave to withdraw
and affirm the trial court’s judgment as modified. See TEX. R. APP. P. 43.2(b); Bray v. State,
179 S.W.3d 725, 726 (Tex. App.—Fort Worth 2005, no pet.) (holding that appellate court has
authority to reform judgment in an Anders appeal and to affirm that judgment as reformed).
Appellant’s counsel has a duty to, within five days of the date of this opinion, send a
copy of the opinion and judgment to Appellant and advise him of his right to file a petition for
discretionary review. See TEX. R. APP. P. 48.4; In re Schulman, 252 S.W.3d at 411 n.35.
Should Appellant wish to seek review of this case by the Texas Court of Criminal Appeals, he
must either retain an attorney to file a petition for discretionary review on his behalf or file a pro
se petition for discretionary review. See In re Schulman, 22 S.W.3d at 408 n.22. Any petition
for discretionary review must be filed within thirty days from the date of either this opinion, or if
a motion for rehearing is filed, the date that the last timely motion for rehearing is overruled by
this Court. See TEX. R. APP. P. 68.2. Any petition for discretionary review must be filed with
the Texas Court of Criminal Appeals. See TEX. R. APP. P. 68.3(a). Any petition for discretionary
review should comply with the requirements of Texas Rule of Appellate Procedure 68.4. See
TEX. R. APP. P. 68.4; In re Schulman, 252 S.W.3d at 408 n.22.
Opinion delivered April 20, 2023.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
(DO NOT PUBLISH)
3
COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
APRIL 20, 2023
NO. 12-22-00182-CR
DYLAN LEDALE MADKINS,
Appellant
V.
THE STATE OF TEXAS,
Appellee
Appeal from the 145th District Court
of Nacogdoches County, Texas (Tr.Ct.No. F1723089)
THIS CAUSE came to be heard on the appellate record and the brief filed
herein, and the same being considered, it is the opinion of this court that the judgment of the
court below should be modified and as modified, affirmed.
It is therefore ORDERED, ADJDUGED and DECREED that the judgment of
the court below be modified to reflect that Appellant pleaded “true” to the enhancement
paragraph; in all other respects, the judgment of the trial court is affirmed; and that this decision
be certified to the court below for observance.
By per curiam opinion.
Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J.