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Clerkley v. State

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
Jun 29, 2017
NO. 02-16-00149-CR (Tex. App. Jun. 29, 2017)

Opinion

NO. 02-16-00149-CR

06-29-2017

LEONARD EUGENE CLERKLEY A/K/A LEONARD EUGENE CLERKLY APPELLANT v. THE STATE OF TEXAS STATE


FROM THE 297TH DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 1383820D MEMORANDUM OPINION

After a bench trial, the trial court convicted Appellant Leonard Eugene Clerkley, also known as Leonard Eugene Clerkly, of three separate counts of aggravated sexual assault of a child under fourteen years of age, found the sexual offender notice true, and sentenced Appellant to life imprisonment on each count. See Tex. Penal Code Ann. § 12.42(c)(2) (West Supp. 2016) (requiring mandatory life sentence for certain repeat sexual offenders).

Appellant's court-appointed appellate counsel has filed a motion to withdraw and a brief in support of that motion. Counsel avers that in his professional opinion, the appeal is frivolous. Counsel's brief and motion meet the requirements of Anders v. California, 386 U.S. 738, 87 S. Ct. 1396 (1967), by presenting a professional evaluation of the record and demonstrating why there are no arguable grounds for relief.

In compliance with Kelly v. State, counsel notified Appellant of his motion to withdraw, provided him a copy of the motion and brief, informed him of his right to file a pro se response, informed him of his right to seek discretionary review should this court hold the appeal frivolous, and took concrete measures to facilitate Appellant's review of the appellate record. See 436 S.W.3d 313, 319 (Tex. Crim. App. 2014). This court informed Appellant that he could file a pro se response. He did not do so but instead filed a motion for the appointment of new counsel on appeal. In that motion he mentioned some potential issues for appeal. The State did not submit a brief.

Once an appellant's court-appointed attorney files a motion to withdraw on the ground that the appeal is frivolous and fulfills the requirements of Anders, this court is obligated to undertake an independent examination of the record. See Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991); Mays v. State, 904 S.W.2d 920, 922-23 (Tex. App.—Fort Worth 1995, no pet.). 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).

We have carefully reviewed the record, counsel's brief, and Appellant's motion. We have determined that the trial court's three judgments require modification to clarify Appellant's pleas to the enhancement allegations and the trial court's enhancement findings. In the indictment, the habitual offender notice appears after the three counts, and the sexual offender notice follows the habitual offender notice. Appellant pled "not true" to both enhancement allegations. The State elected to pursue the sexual offender notice, and the trial court found that notice true.

While the special findings added at the bottom of each judgment correctly indicate that the trial court found the sexual offender notice true and that the habitual offender notice was waived, the boilerplate sections of the judgments reflect:

• "N/A" as to the plea and finding on the first enhancement paragraph (the habitual offender notice);

• "Waived" as to the plea on the second enhancement paragraph (the sexual offender notice); and

• "N/A" as to the finding on the second paragraph (the sexual offender notice).
We therefore modify each judgment to reflect in the boilerplate that
• Appellant pled "not true" to both enhancement paragraphs;
• The finding on the first enhancement paragraph (the habitual offender notice) was waived; and

• The finding on the second enhancement paragraph (the sexual offender notice) was true.

Except for these clarifications, 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, deny Appellant's motion for the appointment of new counsel on appeal, and affirm the trial court's judgments as modified.

PER CURIAM PANEL: PITTMAN, MEIER, and GABRIEL, JJ. DO NOT PUBLISH
Tex. R. App. P. 47.2(b) DELIVERED: June 29, 2017


Summaries of

Clerkley v. State

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
Jun 29, 2017
NO. 02-16-00149-CR (Tex. App. Jun. 29, 2017)
Case details for

Clerkley v. State

Case Details

Full title:LEONARD EUGENE CLERKLEY A/K/A LEONARD EUGENE CLERKLY APPELLANT v. THE…

Court:COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

Date published: Jun 29, 2017

Citations

NO. 02-16-00149-CR (Tex. App. Jun. 29, 2017)