### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03
- 19
- 00487
- CR

Corey Chandler, Appellant

v. The State of Texas, Appellee

FROM THE 167TH DISTRICT COURT OF TRAVIS COUNTY NO. D
- 1
- DC
- 18
- 904055, THE HONORABLE P. DAVID WAHLBERG, JUDGE PRESIDING

M E M O R A N D U M O P I N I O N
Appellant Corey Chandler was convicted by a jury of sexual assault. See Tex. Penal Code § 22.01(a)(1)

. T he jury found the enhancement paragraph alleging a prior felony
conviction to be true and, pursuant t o the repe a t offender punishment provision of the P e nal
Code , assessed his punishment at confinement for twelve years in the Texas Department of
Criminal Justice. See id. § 12.42( b ).

Appellant’s court

- appointed attorney has filed a motion to withdraw supported by a brief concluding that the appeal is frivolous and without merit. The brief meets the requirements of Anders v. C alifornia by presenting a professional evaluation of the record demonstrating why there are no arguable grounds to be advanced. See Anders v . California , 386 U.S. 738, 744 (1967); Garner v. State , 300 S.W.3d 763, 766 (Tex. Crim. App. 2009); see also Penso n v. Ohio , 488 U.S. 75, 81

– 82 (1988).2 Appellant’s counsel certified to this Court that he sent copies of the motion and brief to appel lant , advised appellant of his right to examine the appellate record and file a pro se response, and provided a motio n to assist appellant in obtaining the record. See Kelly v. State , 436 S.W.3d 313, 319

– 20 (Tex. Crim. App. 2014); see also Anders , 386 U.S . at 744. Appellant requested access to the appellate record, and pursuant to this Court’s order , the clerk of the tri al court provided written verification to this Court that the record was provided to appellant. See Kelly , 436 S.W.3d at 321. A ppellant req u est ed an extension of time to file a response, which th i s Court granted , and appellant filed t hree pro se response s
. 1 H owever, appellant d id not identify
any arguable grounds for appe al in his response s
. 2

We have conducted an independent review of the r e cord

— including the record of
the trial proceedings below , appellate counsel’s brief , and appellant’s pro se response s

— and find
no reversible error. See Anders , 386 U.S. at 744; Garner , 300 S.W.3d at 766; Bledsoe v. State ,

1 Initially, a ppellant submitted a handwritten response . T hree weeks later , he submi tt ed a typ e d response . A fter submission , he filed an amended response
. Our review included all three re sponses.

2 In his response s , appellant complains about purported error during jury selec tion, contending that a juror was erroneously ex cl uded f rom t he jury and maintaining that questioning by the prosecutor const ituted an impr oper commitment question. H e asserts that he received ineffective assistance of counsel on appeal because appointed counsel filed an Ander s brief and did not raise the issues th at appellant identified concerning the alleged error d uring jury selection

. He also asserts that he received ineffective of trial cou nsel , re lating to purported ly erroneous omission s in the j ury charge (of an in structi on re garding an element of assault by s trangulation and an article 38.23 inst ruction , see Te x. Code Crim. Proc. ar t. 38.23(a), concerning his inculpatory statement s to police ) , the admission of previously redacte d statements in a medical report , counsel ’ s failure to object to appellant ’ s re in di ctment , and counsel ’ s failure to call ad ditional pu nishment witnesses

. Further, appellant complains about the purported denial of a pretrial motion to suppress th e inculpatory statements that he made to police based on his content ion that the a ffidavit un derlying the arrest warr ant la cked proba ble ca use. Finally, h e complai ns about the denial of his right to c ross
- examine the DNA analys t , who appeared at his trial and testified, and su ggests a Brady v iolati on , see Brady v. Maryland , 373 U.S. 83 (1963) , b e cause the State ’ s sought a previous continuance based on the analyst ’ s unavailabilit y
.3

178 S.W.3d 824, 826

– 27 (Tex. Cr i m . App. 2005). We agree with counsel that the record presents no arguably me ritorious grounds for review and the appeal is frivolous. Counsel’s motion to withdraw is granted.

Howev er, through our independent review of the record, we note that the tria l

court ’ s written judgment of conviction contain s non
- reversible error

. The judgment states that appellant was convicted of a first

- degree felony. However, the offense of sexual assault is a

sec o nd

- degree felony, see Tex. Penal Code § 22. 011(f)

. While t h e jury found the enhancement paragraph of the indictment, which alleged a prior felony conviction , to be true and punished appel lant as a repeat offender, see id. § 12.42( b ) , the punishment range, not the degree of offense, was enhanced. See Fo rd v. Stat e , 334 S.W.3d 230, 234 (Tex. Crim. App. 2011) (noting Court of Criminal Appeals ’ prior recognition “that Penal Code Section 12.42 increases the range of punishment applicab le to the primary offense; it does not increase the severity level or grad e of the p r i mary offense”); see also Ex parte Reinke , 370 S.W.3d 387, 389 (Tex. Crim. App. 2012) (drawing distinction between “enhancing the level of the offense and enhancing the le vel of punishment”). Thus, the trial court ’ s judgment of conviction, whic h state s t h a t the offense of
conviction is a first

- degree felony, is erroneous. The judgment should reflect that appellant was
convicted of a second

- degree felony.

This Court has a uthority to modify incorrect judgments when the necessary
information is available t o do so. See Tex. R. App. P. 43.2(b); Bigley v. State , 865 S.W.2d 26,
27

– 28 (Tex. Crim. App. 1993). Accordingly, we modify the judgment of conviction for sexual
assault to reflect that the “Degree of Offense” is “ 2nd degree felony.”

As so mo dified, th e trial court ’ s judgment of conviction is affirmed.4 __________________________________________ Melissa Goodwin , Justice
Before J ustices Go o d win , Kelly, and S m ith
Modified and , as Modified, Affirmed
Filed: September 4, 2020
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