In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-08-00107-CR

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KAPOOLA EARL JILES, Appellant

V.

THE STATE OF TEXAS, Appellee

 

On Appeal from the 7th Judicial District Court

 Smith County, Texas

Trial Court No. 007-2460-06

 

Before Morriss, C.J., Carter and Moseley, JJ.

Memorandum Opinion by Chief Justice Morriss
This appeal has been transferred to this Court from the Tyler Court of Appeals pursuant to

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the Texas Supreme Court's docket equalization program.

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MEMORANDUM OPINION

Kapoola Earl Jiles appeals from his conviction on his open plea of guilty to a third-degree

felony offense of driving while intoxicated (DWI). See TEX. PENAL CODE ANN. § 49.04 (Vernon 1

2003), § 49.09(b) (Vernon Supp. 2008). Jiles pled "true" to the enhancement, and the trial court

sentenced him to twelve years' imprisonment. Jiles was represented by different, appointed, counsel

at trial and on appeal. 

Jiles' attorney has filed a brief which discusses the record and reviews the proceedings.

Counsel has thus provided a professional evaluation of the record demonstratingwhy, in effect, there

are no arguable grounds to be advanced. This meets the requirements of Anders v. California, 386

U.S. 738 (1967); Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991); and High v. State, 573

S.W.2d 807 (Tex. Crim. App. [Panel Op.] 1978).

Counsel mailed a copy of the brief to Jiles September 24, 2008, informing him of his right

to examine the entire appellate record and to file a pro se response. Counsel simultaneously filed

a motion with this Court seeking to withdraw as counsel in this appeal. Jiles has not filed a pro se

response, nor has he requested an extension of time in which to file such a response.

We have determined that this appeal is wholly frivolous. We have independently reviewed

the clerk's record and the reporter's record, and we agree that no arguable issues support an appeal.

See Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim. App. 2005).
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We do note, however, that the trial court's judgment in this case indicates the degree of the

offense is a "2nd Degree Felony." This offense is a third-degree felony. See TEX.PENAL CODE ANN.

§§ 49.04, 49.09(b). The punishment range was correctly enhanced to that of a second-degree felony.

See TEX. PENAL CODE ANN. § 12.42(a)(3) (Vernon Supp. 2008). This Court has the authority to

reform the judgment to make the record speak the truth when the matter has been called to our

attention by any source. French v. State, 830 S.W.2d 607 (Tex. Crim. App. 1992). In Asberry v.

State, 813 S.W.2d 526 (Tex. App.—Dallas 1991, pet. ref'd), the court noted that the authority of the

appellate court to reform incorrect judgmentsis not dependent on request of any party; the appellate

court may act sua sponte. The Texas Rules of Appellate Procedure provide direct authority for this

Court to modify the judgment of the trial court. TEX. R. APP. P. 43.2.

Therefore, we hereby reform the judgment to indicate that the correct degree of the offense

is a third-degree felony. 
Since we agree this case presents no reversible error, we also, in accordance with Anders,

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grant counsel's request to withdraw from further representation of Jiles in this case. No substitute

counsel will be appointed. Should Jiles 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 that was

overruled by this Court. See TEX. R. APP. P. 68.2. Any petition for discretionary review must be

filed with this Court, after which it will be forwarded to the Texas Court of Criminal Appeals along

with the rest of the filings in this case. See TEX. R. APP. P. 68.3. Any petition for discretionary

review should comply with the requirements of Rule 68.4 of the Texas Rules of Appellate Procedure.

See TEX. R. APP. P. 68.4.

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As reformed, we affirm the judgment of the trial court.

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Josh R. Morriss, III

Chief Justice

Date Submitted: December 1, 2008

Date Decided: December 2, 2008

Do Not Publish