Dominique Anthony Smith v. The State of Texas Appeal from 291st Judicial District Court of Dallas County (memorandum opinion )

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MODIFY and AFFIRM; and Opinion Filed July 29, 2016. S In The Court of Appeals Fifth District of Texas at Dallas No. 05-15-01053-CR No. 05-15-01054-CR No. 05-15-01055-CR DOMINIQUE ANTHONY SMITH, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 291st Judicial District Court Dallas County, Texas Trial Court Cause Nos. F11-61450-U, F11-62642-U, F13-56568-U MEMORANDUM OPINION Before Justices Lang-Miers, Evans, and Brown Opinion by Justice Lang-Miers Dominique Anthony Smith appeals his convictions, following adjudication of his guilt, for possession of cocaine in an amount less than one gram, burglary of a habitation, and possession with intent to deliver cocaine in an amount of one gram or more but less than four grams. TEX. HEALTH & SAFETY CODE ANN. §§ 481.112(a), (c), 481.115(a), (b) (West 2010); TEX. PENAL CODE ANN. § 30.02(a) (West 2011). The trial court assessed punishment at two years’ confinement in state jail for possession of cocaine and sixteen years’ imprisonment for burglary and possession with intent to deliver cocaine. On appeal, appellant’s attorney filed briefs in which he concludes the appeals are wholly frivolous and without merit. The briefs meet the requirements of Anders v. California, 386 U.S. 738 (1967). The briefs present 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, 811–12 (Tex. Crim. App. [Panel Op.] 1978). Counsel delivered copies of the briefs 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) (identifying duties of appellate courts and counsel in Anders cases). We have reviewed the record and counsel’s briefs. 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 trial court’s judgments adjudicating guilt incorrectly reflect there were plea bargain agreements. The record shows appellant entered an open plea of not true to the allegations in the motions to adjudicate. Accordingly, on our own motion, we modify the section of the judgments entitled “terms of plea bargain” to state “open.” 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, 529–30 (Tex. App.—Dallas 1991, pet. ref'd). As modified, we affirm the trial court’s judgments adjudicating guilt. /Elizabeth Lang-Miers/ ELIZABETH LANG-MIERS JUSTICE Do Not Publish TEX. R. APP. P. 47 151053F.U05 –2– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT DOMINIQUE ANTHONY SMITH, Appellant No. 05-15-01053-CR On Appeal from the 291st Judicial District Court, Dallas County, Texas Trial Court Cause No. F11-61450-U. Opinion delivered by Justice Lang-Miers. Justices Evans and Brown participating. V. THE 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 29th day of July, 2016. –3– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT DOMINIQUE ANTHONY SMITH, Appellant No. 05-15-01054-CR On Appeal from the 291st Judicial District Court, Dallas County, Texas Trial Court Cause No. F11-62642-U. Opinion delivered by Justice Lang-Miers. Justices Evans and Brown participating. V. THE 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 29th day of July, 2016. –4– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT DOMINIQUE ANTHONY SMITH, Appellant No. 05-15-01055-CR On Appeal from the 291st Judicial District Court, Dallas County, Texas Trial Court Cause No. F13-56568-U. Opinion delivered by Justice Lang-Miers. Justices Evans and Brown participating. V. THE 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 29th day of July, 2016. –5–

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