Opinion
No. 06-08-00129-CR
Date Submitted: November 3, 2008.
Date Decided: November 12, 2008. DO NOT PUBLISH
On Appeal from the 102nd Judicial District Court Red River County, Texas, Trial Court No. CR01102.
Before MORRISS, C.J., CARTER and MOSELEY, JJ.
MEMORANDUM OPINION
Earl Ray Weaver appeals from his conviction by a jury for the offense of indecency with a child. See Tex. Penal Code Ann. § 21.11(a)(1) (Vernon 2003). The trial court sentenced Weaver to twenty years' imprisonment. Weaver was represented by different, appointed, counsel at trial and on appeal. Weaver's attorney has filed a brief in which he concludes that the appeal is frivolous and without merit, after a review of the record and the related law. Counsel states that he has studied the record and finds no error preserved for appeal that could be successfully argued. The brief contains a professional evaluation of the record and advances six arguable grounds for review. 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 Weaver on August 20, 2008, informing Weaver 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. Weaver filed his pro se response October 13, 2008. 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). As noted previously, however, the trial court's judgment in this case indicates the statute for the offense is "22.11(a)(1) Penal Code." 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. See 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 judgments is 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. See Tex. R. App. P. 43.2. Therefore, we hereby reform the judgment to indicate the correct statute for the offense: Tex. Penal Code Ann. § 21.11(a)(1). As reformed, we affirm the judgment of the trial court.
We note that the judgment indicates the statute for the offense is Tex. Penal Code Ann. § 22.11(a)(1). The correct statute is Tex. Penal Code Ann. § 21.11(a)(1).
Since we agree this case presents no reversible error, we also, in accordance with Anders, grant counsel's request to withdraw from further representation of Weaver in this case. No substitute counsel will be appointed. Should Weaver wish to seek further review of this case by the Texas Court of Criminal Appeals, Weaver must either retain an attorney to file a petition for discretionary review or he must 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.