## NO. 12

- 22

- 00182

- CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

DYLAN LEDALE MADKIN S

, APPELLANT

V.

THE STATE OF TEXAS , APPELLEE §

§

§ APPEAL FROM THE 145TH

JUDICIAL DISTRICT COURT

NACOGDOCHES COUNTY, TEXAS

MEMORA NDUM OPINION PER CURIAM Dylan Ledale Madkins appeals his conviction for possession of a controlled sub stance. Ap pellant ’ s counse l filed a brief in compliance with Anders v. California , 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967) and G ainous v. S tate , 436 S.W.2d 137 (Tex. Crim. App. 1969). We modify the trial court ’ s judgment a nd affirm as modified.

B ACKG ROUND Appellant wa s charged by indictment with possession of methamphetamine in an amount of one gram or more, but less than four grams, a thir d

- degree felony. 1 The indictment included one felony enhancement paragraph , which alleged that Appellant was pre viously convicted o f possession of a controll ed substance

. Appellant plead ed “ no t guilty, ” and the case proceeded to a jur y trial. Sergeant A ustin Taylor McDonald of the Nacogdoches County Sheriff ’ s Office testified

that he and his partner stopped a vehicle driven by App ellant because the head l ights on the vehicle were not sufficiently bright and the vehicle drove on to the improved shoulder. A ppellant

informed McDonald that he possessed a pocketknife , but McDonald did not feel a knife while

1 See T E X

. H EAL TH & S AFETY C ODE A N N

. § 481.115(a), (c) (West Supp. 2022).2 patti ng down A ppellant

. Appellant cons ented to McDonald searching his pockets, and McDonald found a pouch that contained methamphe tamine , marijuana, and pi lls

. R obert John Prince, Jr., a forensic scientist with the Texas Department of Public Safety Crime Lab, testi fied

that testing revealed that the substance recovered from Appellant ’ s possession was methamphetamine in the amount of 2.08 grams

. Following th e presentation of evidence and argument s of counsel , the jury found

A p pellant guilty of possession of a controlled substance as charged in the indictment , and the matter proceeded to a trial on punishment

. Appellant pleaded “ true ” t o the enhancement

parag raph, and the jury ultimately assessed punishment at twenty years of confinement

. 2 The trial judge s entenced Appellant in acc ordance with the jury ’ s verdict

. This appeal followed.

A NALYSI S P URSUANT T O A NDERS V
. C ALIFORNIA Appell ant ’ s counsel filed a bri ef in compliance with Anders and Gainous
, stating that he dilige ntly revi ewed the appell ate record an d is of the opinion that t he record reflects no

reversible error and that there is no er ror upon which an appeal can be predicated

. C ounsel

further states that he is well ac quainted with the facts in this case. In compliance with Anders
, Gain ous , and High v. State , 573 S.W. 2d 807, 812 (T ex. Crim. A p p. 1978), cou nsel ’ s brief presents a chronological summation of the procedural histor y of the case and sta tes that counsel is unable to raise any arg uable issues for appeal. 3 We likewise reviewed t he record for reversible

error and found none. See Bledsoe v. State , 178 S.W.3d 824, 826

- 27 (Tex. Cr im. App. 2005). We note, howe ver, that the trial court ’ s written ju dgment incorrectly re flects that Appellant pleaded “ not true ” to the enhancement paragra ph

. We have the authority to modify a judg ment to speak the truth when we have the necessary information before us to do so. See

T EX

. R. A P P

. P. 43.2(b); Bigley v. St ate , 865 S.W.2d 26, 27

- 28 (Tex. Crim. App . 1993); Asberry

v. State , 813 S.W.2d 526, 529 (Tex. App.

— Da llas 1991, pet. ref ’ d). Because we have the necessary data a nd information to correct the judgment ’ s recitation of Appellant ’ s pl ea to the enhancement par agraph, we conclude that the judgment should be modified to reflect that

2 See T EX

. P ENAL C ODE A NN

. § § 12.3 4
, 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 h is motion to withdraw as coun sel, 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 br ief. The time for fil ing such a brief has expired and no pr o se br ief has been filed.3 Appellant plead ed “ true ” to the enhancement paragraph. See T EX

. R. A PP

. P. 43.2(b); Big ley
, 865 S.W.2d at 2 7

- 28; Asberry , 813 S.W.2d at 529.

C ONCLUS ION
As required by Stafford v. S tate , 8 13 S.W.2d 503 (Tex. Crim. App. 1991), A p pellant ’ s
counsel has moved for leave to withdraw. Se e also In re Schulman , 252 S.W.3d 4 03, 407 (Tex. Crim. App. 20 08) (orig. proceeding). We carr ied the motion for consideration wit h th e merits. Having done so and finding no reversible error, we grant counsel ’ s mo tion for leave to withdraw

and affirm the t rial court ’ s judgment as modified

. S ee T EX

. R. A PP

. P. 43.2 (b) ; Bray v. State
, 179 S.W.3d 725, 726 (Tex. App.

— Fort Worth 2005, no pet.) (holding that appe llate court has authority to reform judgment in an Anders appeal and to affirm that judg ment as reform ed ). 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 T EX

. R

. A PP

. P. 48 .4 ; In re Schulman , 25 2 S.W.3d at 411 n.35.

Should A p pellant wish to seek review of this case by the Texas Court of Criminal Appeals, he

must either retain an attorney to fil e a petition for discretionary review on his behalf or file a pro

se petition fo r discretio nary review

. See In re Schulman , 22 S.W.3d at 408 n.22. Any petition for discretionary review must be filed within thir ty days fro m the date of either this opinion , or if a motion for rehearing is filed, the date that the last timely motion fo r rehearing is o verruled by

this Court

. See T EX

. R. A PP

. P. 68.2. Any petition for discretionary review must be filed with

the Texas Court of Criminal Appeals. See T EX

. R. A PP

. P. 68.3(a). Any pe tition for discretionary

re view should comply with the req uirements of Tex as Rule of Appellate Procedure 68.4. See

T E X

. R. A PP

. P. 68.4; In re Schulman , 252 S.W.3d at 408 n.22. Opinion delivered April 20 , 2023

. Panel consisted of Wor then, C.J., Hoyle, J., and Neeley, J.

( DO NOT PUBLISH )

## COURT OF APPEALS

TWELFTH COURT OF APPEALS DIS TRICT OF TEXA S

JUDGMENT

APRIL 20 , 2023

N O. 12

- 22

- 00182

- CR

DYLAN LEDA LE MADKINS , Appellant V. THE STAT E OF TEXAS , Appellee

Appeal from the 145th Distric t Court
of Naco gdoches County, Texas (Tr.Ct.No. F1723089 )

THIS CAUS E came to be heard on the appe llate record and the brief filed herein, and the same being consi dered, it is the opinion of this court tha t the judgment of the

court below should be modifie d and as modifie d, a ffirmed.

It is therefore ORDE RED, ADJDUGED and DECREED that the judgment of

th e court below be modified to reflect that Appellant pleaded “ true ” to the enhancement paragraph; in all oth er respects, the judgment of the trial court is aff irmed ; and that this decision

be certified to the cour t below for observance.

B y per curiam opinio n

. Panel consisted of Worthen, C.J., Hoyle, J. and Neeley , J.