Kiba Barner v. the State of Texas ( 2023 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-22-00043-CR
___________________________
KIBA BARNER, Appellant
V.
THE STATE OF TEXAS
On Appeal from the 297th District Court
Tarrant County, Texas
Trial Court No. 1601127D
Before Sudderth, C.J.; Kerr and Birdwell, JJ.
Memorandum Opinion by Chief Justice Sudderth
MEMORANDUM OPINION
Appellant Kiba Barner appeals her state-jail conviction and sentence. Barner’s
court-appointed appellate counsel filed a motion to withdraw and an Anders brief in
support of his motion because he had determined that Barner’s appeal presented no
arguable points. See Anders v. California, 386 U.S. 738, 744–45, 87 S. Ct. 1396, 1400
(1967). Counsel noted, however, clerical error in the judgment. We grant counsel’s
motion, modify the judgment to correct the clerical error, and affirm the trial court’s
judgment as modified.
I. Background
In August 2019, as part of a plea bargain, Barner pleaded guilty, and the trial
court (1) found Barner guilty of fraudulently securing the execution of a document,
(2) assessed her punishment at two years’ incarceration in a state jail, (3) probated her
sentence for five years, and (4) placed her on community supervision. See Tex. Penal
Code Ann. § 32.46(a), (b)(4). A little over two years later, in November 2021, the
State filed a petition to revoke Barner’s community supervision. At the February 2022
hearing, Barner pleaded “true” to four of the State’s five allegations and “not true” to
a fifth. After hearing the evidence, the trial court found all five allegations true and
revoked Barner’s community supervision. But when sentencing Barner, the trial court
reduced her punishment from two years’ incarceration in a state jail to only one year.
See Tex. Code Crim. Proc. Ann. art. 42A.755(a)(2). In addition to reducing Barner’s
sentence, the trial court gave her credit for the 50 days that she had served in jail.
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II. Discussion
Barner’s court-appointed appellate attorney has filed a motion to withdraw as
counsel and a brief in support of that motion. See Anders, 386 U.S. at 744–45, 87
S. Ct. at 1400. With one exception,1 counsel’s brief and motion meet the
requirements of Anders, which requires counsel to present a professional evaluation of
the record and show why the appeal contains no arguable grounds for relief. Id., 87
S. Ct. at 1400. Barner filed a pro se response, but her response does not show any
arguable grounds for appeal. 2 The State filed a response in which it agreed with
Barner’s counsel that the appeal contained no arguable points.
We have independently examined the record, as is our duty when appointed
counsel files an Anders brief. 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.); see also Penson v. Ohio, 488 U.S. 75, 82–83, 109 S. Ct. 346, 351 (1988). After
carefully reviewing the record, we agree with counsel that the appeal is wholly
1
We do not see where counsel notified Barner of her right to file a pro se
petition for discretionary review in either his Anders brief or motion to withdraw. See
Kelly v. State, 436 S.W.3d 313, 319 (Tex. Crim. App. 2014). But in a separate document
entitled “Certificate of Counsel,” which Barner’s attorney sent to her by certified mail,
he represents that he informed her of her right to seek discretionary review pro se in
the event that we concluded that her appeal was frivolous. We also note that, by rule,
counsel is required to inform Barner of this right after our opinion issues. See Tex. R.
App. P. 48.4.
2
Barner requested a time cut or, effectively, credit for good conduct.
Jurisdictional concerns aside, Barner did not preserve these issues in the trial court.
See Tex. R. App. P. 33.1
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frivolous and without merit. Our independent review of the record reveals nothing
further 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).
III. Clerical Error
Although counsel found nothing substantively to advance, he noted one clerical
error in the judgment and asked the court to modify the judgment to correct the
mistake. We agree that the judgment contains clerical error. It incorrectly recites that
Barner pleaded true to the State’s petition to revoke. The record shows that Barner
pleaded “not true” to paragraph two and “true” to paragraphs three through six. The
State waived the first paragraph.
We have the power to sua sponte correct clerical error and reform the trial
court’s judgment “to make the record speak the truth” when we have the necessary
information to do so. Criado v. State, Nos. 02-21-00104-CR, 02-21-00105-CR, 2022
WL 2071791, at *4 (Tex. App.—Fort Worth June 9, 2022, no pet.) (mem. op., not
designated for publication). We can effectively render a judgment nunc pro tunc. Id.Thus, we delete the language showing that Barner pleaded “true” and modify
the judgment to reflect that she pleaded “not true” to paragraph two and “true” to
paragraphs three through six.
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IV. Conclusion
Accordingly, we grant counsel’s motion to withdraw. Within five days from
the date of this Court’s opinion, counsel is ordered to send a copy of this opinion and
this Court’s judgment to Barner and to advise her of her right to file a petition for
discretionary review. See Tex. R. App. P. 48.4; Hemphill v. State, No. 13-22-00194-CR,
2022 WL 16842920, at *2 (Tex. App.—Corpus Christi–Edinburg Nov. 10, 2022, no
pet. h.) (mem. op., not designated for publication).3
We modify the judgment to delete the language showing that Barner pleaded
“true” and to reflect that she pleaded “not true” to paragraph two and “true” to
paragraphs three through six. We affirm the trial court’s judgment as modified.
/s/ Bonnie Sudderth
Bonnie Sudderth
Chief Justice
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: January 12, 2023
3
No substitute counsel will be appointed. See Hemphill, 2022 WL 16842920, at
*2 n.2; see also Gutierrez v. State, No. 02-19-00448-CR, 2021 WL 1685952, at *1 (Tex.
App.—Fort Worth Apr. 29, 2021, no pet.) (mem. op., not designated for publication).
Any petition for discretionary review must be filed within 30 days after the date of
this court’s judgment or the date the last timely motion for rehearing, or timely
motion for en banc reconsideration, is overruled by this court. Tex. R. App. P. 68.2.
Additionally, any petition for discretionary review must be filed with the clerk of the
Texas Court of Criminal Appeals and should comply with the requirements of Rule
68.4 of the Texas Rules of Appellate Procedure. Tex. R. App. P. 68.3(a), 68.4.
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