             In the
        Court of Appeals
Second Appellate District of Texas
         at Fort Worth
       ___________________________

            No. 02-19-00072-CR
       ___________________________

          CARLOS TOPPS, Appellant

                        V.

            THE STATE OF TEXAS


    On Appeal from the 211th District Court
           Denton County, Texas
        Trial Court No. F18-755-211


Before Birdwell, J.; Sudderth, C.J.; and Gabriel, J.
      Per Curiam Memorandum Opinion
                            MEMORANDUM OPINION

       Carlos Topps appeals from his conviction by a jury for the state jail felony of

possession of less than one gram of a controlled substance in Penalty Group 1 and

the resulting enhanced four-year sentence. See Tex. Health & Safety Code Ann.

§ 481.115(a), (b); Tex. Penal Code Ann. §§ 12.34(a), 12.425(a). We affirm.

       Topps’s court-appointed appellate counsel has filed a motion to withdraw and

a brief under Anders v. California, representing that this case presents no nonfrivolous

grounds for appeal. 386 U.S. 738, 744–45, 87 S. Ct. 1396, 1400 (1967). Counsel’s brief

and motion meet the requirements of Anders by presenting a professional evaluation

of the record and demonstrating why there are no arguable grounds for relief. See id.;

In re Schulman, 252 S.W.3d 403, 406–12 (Tex. Crim. App. 2008) (orig. proceeding).

Counsel also complied with the requirements set forth in Kelly v. State, 436 S.W.3d

313, 319–20 (Tex. Crim. App. 2014). Although we too informed Topps of his right to

request a copy of the appellate record and file a pro se response, he has not done so.

Likewise, the State has not filed a brief.

       Once an appellant’s court-appointed attorney files a motion to withdraw on the

ground that an appeal is frivolous and fulfills the requirements of Anders, we must

independently examine the record. See Stafford v. State, 813 S.W.2d 503, 511 (Tex.

Crim. App. 1991). Only then may we grant counsel’s motion to withdraw. See Penson v.

Ohio, 488 U.S. 75, 82–83, 109 S. Ct. 346, 351 (1988).



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       We have carefully reviewed the record. We have determined that the judgment

should be modified so that the special finding at the top of page 3 accurately reflects

the jury’s finding in the punishment charge. The jury found that before committing

this possession offense, Topps had been finally convicted of two prior state jail

felonies. See Tex. Penal Code Ann. § 12.425(a). This enhancement increased the

punishment range for the possession offense to that of a third degree felony.1 See id.

But the judgment inaccurately states that Topps had been convicted of the second

prior state jail felony after the first became final. See id. § 12.425(b) (providing for

enhancement of punishment range for state jail felony to range for second degree

felony if defendant has been previously convicted of two prior felonies other than

state jail felonies and the second conviction became final after the first). Not only

does the special finding in the judgment conflict with the jury’s finding, it is inaccurate

because Topps was convicted of both state jail felonies on the same day, July 8, 2016.




       1
        Counsel notes in his brief that Topps pleaded true to both enhancement
allegations even though the prior convictions were for state jail felonies that were
punished under the range for Class A misdemeanors; counsel suggests that these
offenses were ineligible for enhancement but that Topps waived any objection. See
Tex. Penal Code Ann. § 12.44(a). But even if Topps did not forfeit such a complaint
by pleading true, the reduction in the punishment range of both prior offenses did not
affect their eligibility for enhancement of this offense because they remained
“punishable” as state jail felonies under Penal Code Section 12.35(a). Tex. Penal Code
Ann. § 12.425(a); cf. Samaripas v. State, 454 S.W.3d 1, 8 & n.5 (Tex. Crim. App. 2014)
(noting in a different context that legislature’s use of “punished as” versus
“punishable as” signals a significant distinction and that only “punished as” refers to
how the offense was actually punished).

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          We therefore modify the wording of the special finding at the top of page 3 of

the judgment to read as follows:

          THE COURT FURTHER FINDS that before the commission of the
          offense alleged in paragraph one of the indictment, on the 8th day of
          July, 2016, in cause number F-1460401-U, in Dallas County, Texas, the
          defendant was finally convicted of the felony of Fraudulent Use or
          Possession of Identifying Information 5 Items or Less in the 291st
          Judicial District Court; and before the commission of the offense alleged
          in paragraph one of the indictment, the defendant was finally convicted
          of the felony of Attempted Possession of a Controlled Substance on the
          8th day of July, 2016, in Dallas County, Texas, in cause number
          F1572307-U, in the 291st District Court.

See Tex. R. App. P. 43.2(b); French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App.

1992); Hopper v. State, 483 S.W.3d 235, 240–41 (Tex. App.––Fort Worth 2016, pet.

ref’d).

          Except for the modification to the judgment, we agree with counsel that this

appeal is wholly frivolous and without merit; we find nothing in the record that might

arguably support the appeal. See Bledsoe v. State, 178 S.W.3d 824, 827–28 (Tex. Crim.

App. 2005); see also Meza v. State, 206 S.W.3d 684, 685 n.6 (Tex. Crim. App. 2006).

Accordingly, we grant counsel’s motion to withdraw and affirm the trial court’s

judgment as modified.

                                                        Per Curiam

Do Not Publish
Tex. R. App. P. 47.2(b)

Delivered: November 7, 2019



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