Lamont Joseph Johnson v. The State of Texas--Appeal from Criminal District Court of Jefferson County

In The
Court of Appeals
Ninth District of Texas at Beaumont
______________________
NO. 09-06-163 CR
______________________
LAMONT JOSEPH JOHNSON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court
Jefferson County, Texas
Trial Cause No. 91230
MEMORANDUM OPINION

A jury found appellant Lamont Joseph Johnson guilty of possession of a controlled substance in an amount of less than one gram. See Tex. Health & Safety Code Ann. 481.115(b) (Vernon 2003). The trial court sentenced Johnson to twelve years of confinement. (1)

Johnson's appellate counsel filed a brief that presents counsel's professional evaluation of the record and concludes the appeal is frivolous. See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967); High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978). On February 1, 2007, we granted an extension of time for appellant to file a pro se brief. We received no response from appellant.

We reviewed the record, and we agree with counsel's conclusion that no arguable issues support an appeal. (2) In our review of the record, we noted that the trial court's judgment incorrectly recites that the statute under which Johnson was charged was section 481.115 of the Agriculture Code, and that the offense with which Johnson was charged was a second-degree felony. The indictment reflects Johnson was charged with a violation of section 481.115 of the Health and Safety Code (the Texas Controlled Substances Act), and the indictment and the reporter's record of the sentencing hearing reflect the offense with which Johnson was charged was a state jail felony, but his punishment exposure was increased due to his sequenced prior felony convictions. This Court has the authority to reform the trial court's judgment to correct a clerical error. See Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 531 (Tex. App.--Dallas 1991, pet. ref'd), modified on other grounds by Lockett v. State, 874 S.W.2d 810, 813 (Tex. App.--Dallas, 1994, pet. ref'd.). Therefore, we modify the trial court's judgment to read that Johnson was charged under section 481.115(b) of the Health and Safety Code, and that the offense with which Johnson was charged was a state jail felony, but Johnson was charged as a sequenced felony habitual offender.

We find it unnecessary to order appointment of new counsel to re-brief the appeal. Compare Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991). We affirm the trial court's judgment as reformed. (3)

AFFIRMED AS REFORMED.

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DAVID GAULTNEY

Justice

Submitted on May 29, 2007

Opinion Delivered June 20, 2007

Do not publish

 

Before Gaultney, Kreger, and Horton, JJ.

1. The indictment alleged Johnson had three prior felony convictions, and that after the first three convictions became final, Johnson was convicted of a fourth felony. Johnson pled "true" to the enhancement allegations, thereby raising his punishment exposure to that for a second-degree felony. See Tex. Pen. Code Ann. 12.42(a)(2) (Vernon Supp. 2006).

2. A video/audio tape played at trial is not viewable by this Court, but the record includes testimony reflecting some of the statements made on the tape. No objections were made to the admission of the tape into evidence.

3. Appellant may challenge our decision in this case by filing a petition for discretionary review. See Tex. R. App. P. 68.