Unreported / Non-Citable
Background
Devondrick Jermain Berry pleaded guilty under a plea agreement to the lesser-included offense of possessing less than one gram of a Penalty Group 2 controlled substance, a state-jail felony. The trial court deferred adjudication and placed him on community supervision for three years.
After the State moved to revoke Berry’s unadjudicated community supervision, Berry pleaded true to two alleged violations. The trial court found three allegations true, adjudicated him guilty of the original lesser-included offense, revoked community supervision, and sentenced him to one year in state jail. Berry’s appointed appellate counsel filed an Anders brief asserting that the record presented no arguable ground for reversal, and Berry did not file a pro se response.
The Court’s Holding
After independently examining the entire record and counsel’s brief as required by Anders, the Ninth Court of Appeals found nothing that would arguably support the appeal. It therefore declined to appoint new counsel for further briefing.
The court nevertheless identified clerical errors in the written judgment. The judgment incorrectly described Berry’s conviction as possession of one to four grams of a Penalty Group 2 controlled substance, a third-degree felony, and incorrectly stated that he pleaded true to Counts 1, 2, and 4 of the revocation motion. The court modified the judgment to identify the lesser-included possession offense as a state-jail felony and to reflect that Berry pleaded true only to Counts 2 and 4, then affirmed the judgment as modified.
Key Takeaways
- An appellate court reviewing an Anders brief must independently examine the entire record to determine whether any arguable ground for appeal exists.
- The court found no nonfrivolous basis to reverse Berry’s adjudication, revocation, or one-year state-jail sentence.
- A Texas court of appeals may modify a criminal judgment to correct clerical errors and affirm the judgment as modified.
Why It Matters
The decision illustrates that an Anders appeal can still result in correction of the written judgment even when the court finds no arguable ground for reversal. Accurate identification of the offense, its felony classification, and the allegations to which a defendant pleaded true remains important because the written judgment is the formal record of the conviction and revocation proceedings.