NUMBER 13-20-00324-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG 

 

ALTON STAFFORD, Appellant,

v.

THE STATE OF TEXAS,

Appellee.

 

On appeal from the 24th District Court 

of De Witt County, Texas.

 

MEMORANDUM OPINION

Before Justices Longoria, Hinojosa, and Tijerina

Memorandum Opinion by Justice Hinojosa

Appellant Alton Stafford appeals a judgment revoking his community supervision 

and adjudicating him guilty of possession of methamphetamine in an amount of four

grams or more but less than 200 grams, a second-degree felony enhanced for 
2

punishment to a first-degree felony by Stafford’s prior felony conviction. See TEX. HEALTH 

& SAFETY CODE ANN. § 481.115(d); TEX. PENAL CODE ANN. § 12.42(b). The trial court 

sentenced Stafford to eight years’ imprisonment. Stafford’s court-appointed counsel has 

filed an Anders brief stating that there are no arguable grounds for appeal but identifying 

a clerical error in the judgment. See Anders v. California, 386 U.S. 738, 744 (1967). We 

affirm as modified.

I. ANDERS BRIEF

Pursuant to Anders v. California, Stafford’s court-appointed appellate counsel has 

filed a motion to withdraw and a brief in support thereof in which he states that he has 

diligently reviewed the entire record and has found no non-frivolous grounds for appeal. 

See id. Counsel’s brief meets the requirements of Anders as it presents a professional 

evaluation demonstrating why there are no arguable grounds to advance on appeal. See 

In re Schulman, 252 S.W.3d 403, 407 n.9 (Tex. Crim. App. 2008) (“In Texas, an Anders

brief need not specifically advance ‘arguable’ points of error if counsel finds none, but it 

must provide record references to the facts and procedural history and set out pertinent 

legal authorities.” (citing Hawkins v. State, 112 S.W.3d 340, 343–44 (Tex. App.—Corpus 

Christi–Edinburg 2003, no pet.))); Stafford v. State, 813 S.W.2d 503, 510 n.3 (Tex. Crim. 

App. 1991).

In compliance with High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel 

Op.] 1978) and Kelly v. State, 436 S.W.3d 313, 318–19 (Tex. Crim. App. 2014), Stafford’s

counsel carefully discussed why, under controlling authority, there is no reversible error 

in the trial court’s judgment. Counsel has informed this Court in writing that he has: (1) 
3

notified Stafford that counsel has filed an Anders brief and a motion to withdraw; (2) 

provided Stafford with copies of both pleadings; (3) informed Stafford of his rights to file 

a pro se response,1 review the record preparatory to filing that response, and seek 

discretionary review if the court of appeals concludes that the appeal is frivolous; and (4) 

provided Stafford with a form motion for pro se access to the appellate record, lacking 

only Stafford’s signature and the date and including the mailing address for the court of 

appeals, with instructions to file the motion within ten days. See Anders, 386 U.S. at 744;

Kelly, 436 S.W.3d at 318–19; see also In re Schulman, 252 S.W.3d at 409 n.23. An 

adequate amount of time has passed, and Stafford has not filed a pro se response. 

II. INDEPENDENT REVIEW

Upon receiving an Anders brief, we must conduct a full examination of all the 

proceedings to determine whether the case is wholly frivolous. Penson v. Ohio, 488 U.S. 

75, 80 (1988). We have reviewed the entire record and counsel’s brief and found nothing 

that would arguably support an appeal. See Bledsoe v. State, 178 S.W.3d 824, 827–28 

(Tex. Crim. App. 2005) (“Due to the nature of Anders briefs, by indicating in the opinion 

that it considered the issues raised in the briefs and reviewed the record for reversible 

error but found none, the court of appeals met the requirement of Texas Rule of Appellate 

Procedure 47.1.”); Stafford, 813 S.W.2d at 509. However, Stafford’s attorney has brought 

to the Court’s attention a clerical error in the judgment regarding the degree of the 

1 The Texas Court of Criminal Appeals has held that “the pro se response need not comply with 

the rules of appellate procedure in order to be considered. Rather, the response should identify for the court 

those issues which the indigent appellant believes the court should consider in deciding whether the case 

presents any meritorious issues.” In re Schulman, 252 S.W.3d 403, 409 n.23 (Tex. Crim. App. 2008) 

(quoting Wilson v. State, 955 S.W.2d 693, 696–97 (Tex. App.—Waco 1997, no pet.)).
4

convicted offense. 

We have the authority to modify a judgment in an Anders case and affirm the 

judgment as modified where there is no reversible error. Ferguson v. State, 435 S.W.3d 

291, 293 (Tex. App.—Waco 2014, pet. struck); see TEX. R. APP. P. 43.2(b); French v. 

State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992) (holding that “an appellate court has 

authority to reform a judgment . . . to make the record speak the truth when the matter 

has been called to its attention by any source”); see also Allen v. State, No. 06-20-00072-

CR, 2021 WL 55640, at *2 (Tex. App.—Texarkana Jan. 7, 2021, no pet.) (mem. op., not 

designated for publication) (modifying the judgment in an Anders appeal to reflect that the 

appellant’s conviction was for a state-jail felony punishable as a second-degree felony). 

Here, the judgment notes that the degree of the offense for which Stafford was convicted 

is a first-degree felony. However, Stafford was convicted of a second-degree felony 

enhanced for punishment to a first-degree felony. See TEX. HEALTH & SAFETY CODE ANN. 

§ 481.115(d); TEX. PENAL CODE ANN. § 12.42(b). Although the punishment range for an 

offense may be enhanced by proof of a prior felony conviction, the enhancement does 

not affect the grade of the primary offense. See Ford v. State, 334 S.W.3d 230, 234–35 

(Tex. Crim. App. 2011). Therefore, to the extent the judgment in this case suggests that 

Stafford was convicted of a first-degree offense, it is incorrect. See id.; see also Garrett 

v. State, No. 03-17-00031-CR, 2017 WL 3897324, at *2 (Tex. App.—Austin Aug. 31, 

2017, no pet.) (mem. op., not designated for publication). 

Accordingly, we modify the judgment adjudicating guilt to reflect that the degree of 

the offense for which Stafford was convicted is a second-degree felony enhanced for 
5

punishment to a first-degree felony. See TEX. R. APP. P. 43.2(b).

III. MOTION TO WITHDRAW

In accordance with Anders, Stafford’s attorney has asked this Court for permission 

to withdraw as counsel for appellant. See Anders, 386 U.S. at 744; see also In re 

Schulman, 252 S.W.3d at 408 n.17 (“[I]f an attorney believes the appeal is frivolous, he 

must withdraw from representing the appellant. To withdraw from representation, the 

appointed attorney must file a motion to withdraw accompanied by a brief showing the 

appellate court that the appeal is frivolous.” (citing Jeffery v. State, 903 S.W.2d 776, 779–

80 (Tex. App.—Dallas 1995, no pet.) (citations omitted))). We grant counsel’s motion to 

withdraw. Within five days of the date of this Court’s opinion, counsel is ordered to send 

a copy of this opinion and this Court’s judgment to Stafford and to advise him of his right 

to file a petition for discretionary review. 2 See TEX. R. APP. P. 48.4; see also In re 

Schulman, 252 S.W.3d at 412 n.35; Ex parte Owens, 206 S.W.3d 670, 673 (Tex. Crim. 

App. 2006).

IV. CONCLUSION

We modify the trial court’s judgment to reflect that the degree of the offense for 

which Stafford was convicted is a second-degree felony enhanced for punishment to a 

first-degree felony. We affirm the trial court’s judgment as modified.

2 No substitute counsel will be appointed. Should Stafford wish to seek further review of this case 

by the Texas Court of Criminal Appeals, he must either retain an attorney to file a petition for discretionary 

review or file a pro se petition for discretionary review. Any petition for discretionary review must be filed 

within thirty days from the date of either this opinion or the last timely motion for rehearing or timely motion 

for en banc reconsideration that was overruled by this Court. See TEX. R. APP. P. 68.2. Any petition for 

discretionary review must be filed with the clerk of the Court of Criminal Appeals. See id. R. 68.3. Any 

petition for discretionary review should comply with the requirements of Texas Rule of Appellate Procedure 

68.4. See id. R. 68.4.
6

LETICIA HINOJOSA

Justice

Do not publish.

TEX. R. APP. P. 47.2 (b).

Delivered and filed on the

10th day of June, 2021.