AFFIRMED IN PART; REVERSED AND REMANDED IN PART; Opinion Filed
December 5, 2019




                                              In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                       No. 05-18-01401-CR
                                       No. 05-18-01402-CR
                                       No. 05-18-01403-CR

                             MICHAEL LEE BROOKS, Appellant
                                          V.
                              THE STATE OF TEXAS, Appellee

                     On Appeal from the 204th Judicial District Court
                                  Dallas County, Texas
              Trial Court Cause Nos. F16-56811-Q, F16-56812-Q, F16-56813-Q

                              MEMORANDUM OPINION
                         Before Justices Bridges, Whitehill, and Schenck
                                   Opinion by Justice Schenck
       Michael Lee Brooks appeals his three convictions for possession with intent to deliver

controlled substances. In the first two cases, we affirm the trial court’s judgments. In the third

case, we modify the trial court’s judgment to reflect appellant was convicted of a felony of the

second degree, and we reverse the trial court’s judgment pertaining to the punishment and remand

this cause to the trial court for a new punishment hearing. Because all issues are settled in law, we

issue this memorandum opinion. TEX. R. APP. P. 47.4.

                                          BACKGROUND

       In cause number 05-18-01401-CR, appellant was indicted for the first-degree felony of

possession with intent to deliver methamphetamine in an amount of four grams or more but less
than 200 grams. TEX. HEALTH & SAFETY CODE ANN. § 481.112(d). In cause number 05-18-

01402-CR, appellant was indicted for the first-degree felony of possession with intent to deliver

heroin in an amount of four grams or more but less than 200 grams. Id. § 481.112(d). In cause

number 05-18-01403-CR, appellant was indicted for the second-degree felony of possession with

intent to deliver cocaine in an amount of four grams or more but less than 200 grams. Id.

§ 481.112(c). Each indictment also included an enhancement paragraph alleging a prior felony

offense of possession with intent to deliver a controlled substance.

           In a single proceeding in 2016, appellant pleaded guilty to the three charged offenses,

judicially confessed to having committed the offenses, and pleaded true to the enhancement

paragraph contained in each indictment. The trial court accepted appellant’s pleas and placed him

on deferred adjudication community supervision for a period of eight years in each case. In 2018,

the State moved to revoke the probations and proceed with adjudication of guilt in each case.

Appellant entered open pleas of true to the State’s allegations in its motions to revoke. In each

case, the trial court accepted appellant’s pleas of true, revoked his community supervision,

adjudicated him guilty, and sentenced him to twenty years’ confinement in each case, to be served

concurrently. The trial court certified appellant’s right to appeal in each case,1 and he timely filed

his notices of appeal.

                                                                   DISCUSSION

I.         Cause Numbers 05-18-01401-CR & 05-18-01402-CR

           Appellant’s counsel filed Anders briefs in the possession with intent to deliver

methamphetamine and heroin cases.




      1
        The original certifications of appellant’s right to appeal failed to indicate the cases were not plea-bargain cases and that appellant had a right
to appeal. After receiving notices from this Court, the trial court filed corrected certifications indicating the three cases were not plea-bargain cases
and that appellant had the right to appeal.

                                                                          –2–
       In the methamphetamine and heroin cases, appellant’s attorney filed motions to withdraw

supported by briefs in which he concludes the appeals are wholly frivolous and without merit. The

briefs meet the requirements of Anders v. California, 386 U.S. 738 (1967). The briefs present a

professional evaluation of each record showing why, in effect, there are no arguable grounds to

advance. See High v. State, 573 S.W.2d 807, 811–12 (Tex. Crim. App. [Panel Op.] 1978). Counsel

delivered a copy of the briefs to appellant. We advised appellant of his right to file a pro se

response. See Kelly v. State, 436 S.W.3d 313, 319–21 (Tex. Crim. App. 2014) (noting appellant

has right to file pro se response to Anders brief filed by counsel). Appellant filed motions

requesting an extension of time to file his briefs, which this Court granted, but appellant filed no

response to the Anders briefs.

       We have reviewed the record and counsel’s briefs. See Bledsoe v. State, 178 S.W.3d 824,

826–27 (Tex. Crim. App. 2005) (explaining appellate court’s duty in Anders cases). We agree the

appeals of the possession with the intent to deliver methamphetamine and heroin cases are

frivolous and without merit. We find nothing in the records that might arguably support the

appeals. We therefore grant counsel’s motions to withdraw in these cases.

II.    Cause Number 05-18-01403-CR

       In the possession with the intent to deliver cocaine case, appellant raises a single issue

arguing the trial court mistakenly admonished appellant in the motion to revoke hearing that the

range of punishment in this case was 15 to 99 years and a fine of up to $10,000 when the actual

range of punishment was 5 to 99 years. He contends this erroneous admonishment indicates the

trial court improperly failed to consider the whole range of punishment such that the case should

be reversed and remanded for a new punishment hearing.

       Appellant was indicted and judicially confessed to the offense of the second-degree felony

of possession with intent to deliver cocaine in an amount of four grams or more but less than 200


                                                –3–
grams. See HEALTH & SAFETY § 481.112(c). The enhancement paragraph to which he pleaded

true raised the punishment range for this offense from a second-degree felony to a first-degree

felony, with a minimum punishment of five years’ confinement. See TEX. PENAL CODE ANN.

§ 12.42(b).   That same enhancement paragraph raised the minimum punishment for the

methamphetamine and heroin cases from five to 15 years. See id. § 12.42(c)(1).

       Appellant complains the following exchange indicates the trial court mistakenly believed

the minimum punishment in the cocaine case to be fifteen years:

       THE COURT: Mr. Brooks, back on December 2nd of 2016, you entered pleas of
       guilty to each of these cases, which are all first-degree manufacturing or delivering
       a controlled substance case, as well as a plea of true to one enhancement paragraph.

       And at that time, the Court accepted your pleas of guilty and true, found the
       evidence sufficient to prove your guilt, however, deferred a finding of your guilt
       and instead placed you on community supervision.

       And at that time, you were given a copy of the terms and conditions of your
       community supervision. Is that true and correct to the best of your recollection?

       APPELLANT: Yes, ma’am.

       THE COURT: Well, you’re here today because the State has filed motions to find
       you guilty in each of these offenses and to take away your community supervision.
       It is my understanding that you intend to plead true to the allegations in the State’s
       motion, and you understand that the Court has a few options.

       We could continue you on community supervision, possibly modify your
       conditions, or the Court could find you guilty and sentence you to a term in prison,
       not less than 15 years nor more than life, and fines not to exceed $10,000. Do you
       understand that?

       APPELLANT: Yes, ma’am.

       THE COURT: You understand that there is no guarantee as to what the outcome
       might be?

       APPELLANT: Yes, ma’am.

       THE COURT: And I’m assuming that the State has given you a plea offer?

       PROSECUTOR: We offered 15.



                                                –4–
       THE COURT: Which is the minimum sentence and we’re here doing the open plea.
       I’m assuming you’re hoping that the Court will continue you on community
       supervision?

       APPELLANT: Yes, ma’am.

       THE COURT: Okay. But you understand there’s no guarantee that that might
       happen?

       APPELLANT: Yes, ma’am.

       THE COURT: All right. Please present the State’s motions.

Appellant argues it is “certain . . . that the judge thought all the cases were the same.”

       The State responds the record is not clear that the judge mistakenly believed the minimum

sentence in the cocaine case was 15 years. Instead, the State argues, the judge was discussing all

three cases together and the minimum sentence appellant would serve with the three cases running

concurrently would be 15 years.

       We disagree with the State’s interpretation of the record. In particular, we note the trial

judge’s statement that appellant “entered pleas of guilty to each of these cases, which are all first-

degree manufacturing or delivering a controlled substance case, as well as a plea of true to one

enhancement paragraph.” (emphasis added). We conclude the record shows the trial court

mistakenly believed the punishment range in the cocaine case was 15 to 99 years.

       In light of this conclusion, we are required to conduct a harm analysis under Rule 44.2(b)

of the Texas Rules of Appellate Procedure. See TEX. R. APP. P. 44.2(b). That is, we must disregard

the error if it did not affect appellant’s substantial rights. See id. Reversal is required for non-

constitutional error if we have grave doubt that the result of the proceeding was free from the

substantial effect of the error. See Barshaw v. State, 342 S.W.3d 91, 94 (Tex. Crim. App. 2011).

“Grave doubt” means that “in the judge’s mind, the matter is so evenly balanced that he feels

himself in virtual equipoise as to the harmlessness of the error.” See id.



                                                 –5–
       The court of criminal appeals has held that the unfettered right to be sentenced by a

sentencing judge who properly considers the entire range of punishment is a substantive right

necessary to effectuate the proper functioning of our criminal justice system. Grado v. State, 445

S.W.3d 736, 741 (Tex. Crim. App. 2014). Further, this Court reversed a trial court’s judgment

and remanded the case for a new punishment hearing after concluding the trial court erred by not

considering the full range of punishment. See Frances v. State, No. 05-14-00711-CR, 2015 WL

1859131, at *1–2 (Tex. App.—Dallas Apr. 22, 2015, no pet.) (mem. op., not designated for

publication).

       The State urges the record here shows no harm. The State argues the trial court discussed

and considered all three cases together, such that it is unlikely the trial court would have sentenced

appellant to a lighter sentence in the cocaine case than in the methamphetamine and heroin cases.

The State also asserts the sentences were well within the punishment range for each offense. The

State points to exchanges during the hearing that indicate the trial court’s doubt as to appellant’s

credibility and sincerity. Finally, the State argues that the record shows no harm because the trial

court ordered the sentences to be served concurrently such that even if the trial court sentenced

appellant to serve a lower sentence in the cocaine case, the minimum amount of years he would

serve would be the twenty years he was sentenced to in the methamphetamine and heroin cases.

       We disagree with the State’s arguments. Given that the court of criminal appeals has held

that the right to be sentenced by a sentencing judge who properly considers the entire range of

punishment is a substantive right and in light of our standard of review under our rules of

procedure, we conclude this error affected appellant’s substantial rights. See Tex. R. App. P.

44.2(b); Grado, 445 S.W.3d at 741. Accordingly, we reverse the trial court’s judgment as to the

punishment in the cocaine case and remand this case to the trial court for a new punishment

hearing. See Frances, 2015 WL 1859131, at *1–2.

                                                 –6–
                                 MODIFICATION OF JUDGMENT

       The State raises one cross-issue, requesting this Court correct the judgment in the cocaine

case to show appellant was convicted of a second-degree felony, not a first-degree felony. As

discussed above, appellant was convicted of the second-degree felony of possession with intent to

deliver cocaine in an amount of four grams or more but less than 200 grams. See HEALTH &

SAFETY § 481.112(c). The judgment states appellant was convicted of a “1st Degree Felony.”

       We have the authority to modify the trial court’s judgment to make the record speak the

truth. TEX. R. AP. P. 43.2(b); French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1991). We

sustain the State’s cross-issue and modify the judgment in cause number 05-18-01403-CR to

reflect appellant was convicted of a felony of the second degree.

                                          CONCLUSION

       In cause numbers 05-18-01401-CR and 05-18-01402-CR, we grant counsel’s motions to

withdraw and affirm the trial court’s judgments.        In cause number 05-18-01403-CR, we

modify the judgment to reflect appellant was convicted of a felony of the second degree, and we

reverse the trial court’s judgment pertaining to the punishment and remand this cause to the trial

court for a new punishment hearing.




                                                  /David J. Schenck/
                                                  DAVID J. SCHENCK
                                                  JUSTICE


DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
181401F.U05




                                               –7–
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

 MICHAEL LEE BROOKS, Appellant                     On Appeal from the 204th Judicial District
                                                   Court, Dallas County, Texas
 No. 05-18-01401-CR        V.                      Trial Court Cause No. F16-56811-Q.
                                                   Opinion delivered by Justice Schenck.
 THE STATE OF TEXAS, Appellee                      Justices Bridges and Whitehill
                                                   participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 5th day of December, 2019.




                                             –8–
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

 MICHAEL LEE BROOKS, Appellant                     On Appeal from the 204th Judicial District
                                                   Court, Dallas County, Texas
 No. 05-18-01402-CR        V.                      Trial Court Cause No. F16-56812-Q.
                                                   Opinion delivered by Justice Schenck.
 THE STATE OF TEXAS, Appellee                      Justices Bridges and Whitehill
                                                   participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 5th day of December, 2019.




                                             –9–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

 MICHAEL LEE BROOKS, Appellant                      On Appeal from the 204th Judicial District
                                                    Court, Dallas County, Texas
 No. 05-18-01403-CR         V.                      Trial Court Cause No. F16-56813-Q.
                                                    Opinion delivered by Justice Schenck.
 THE STATE OF TEXAS, Appellee                       Justices Bridges and Whitehill
                                                    participating.

        Based on the Court’s opinion of this date, we MODIFY the judgment of the trial court to
reflect appellant was convicted of a felony of the second degree. We REVERSE the trial court’s
judgment as to punishment and REMAND this case to the trial court for a new punishment
hearing pursuant to article 44.29(b) of the Texas Code of Criminal Procedure. TEX. CODE CRIM.
PROC. ANN. Art. 44.29(b).


Judgment entered this 5th day of December, 2019.




                                             –10–
