Ernest Lee Tillman v. State

Affirmed as Reformed and Memorandum Opinion filed October 16, 2008

Affirmed as Reformed and Memorandum Opinion filed October 16, 2008.

In The

Fourteenth Court of Appeals

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NO. 14-08-00053-CR

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ERNEST LEE TILLMAN, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 177th District Court

Harris County, Texas

Trial Court Cause No. 897528

M E M O R A N D U M   O P I N I O N

After a plea of guilty without an agreed recommendation on punishment, appellant was convicted of the offense of aggravated robbery. On November 20, 2002, appellant was sentenced to confinement for thirty years in the Institutional Division of the Texas Department of Criminal Justice.  Appellant filed a pro se notice of appeal on August 19, 2005.  This Court dismissed his first appeal as untimely. See Tillman v. State, No. 14-05-00958-CR, 2005 WL 2386247, (Tex. App.CHouston [14th Dist.] 2005, no pet.) (not designated for publication).  The Court of Criminal Appeals then granted appellant an Aout‑of‑time@  appeal on his application for writ of habeas corpus.  See Ex Parte Tillman, No. AP-75,766, 2007 WL 2648995 (Tex. Crim. App. Sept. 12, 2007) (not designated for publication).  This appeal followed.

Appellant=s appointed counsel filed a brief in which he concludes the appeal is wholly frivolous and without merit.  The brief meets the requirement of Anders v. California, 386 U.S. 738, 87 S. Ct. 1396 (1967), presenting a professional evaluation of the record and demonstrating why there are no arguable grounds to be advanced.  See High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978).

A copy of counsel=s brief was delivered to appellant.  Appellant was advised of the right to examine the appellate record and file a pro se response.  See Stafford v. State, 813 S.W.2d 503, 510 (Tex. Crim. App. 1991).  Counsel also provided appellant a copy of the record.  Appellant filed a pro se response to counsel=s brief, in which he challenged his guilty plea and pointed out, among other matters, that the trial court=s judgment fails to include an affirmative finding on the use of a deadly weapon. 

We have carefully reviewed the record, counsel=s brief, and appellant=s response, and agree the appeal is wholly frivolous and without merit.  We conclude that the omission of an affirmative finding of the use of a deadly weapon in this case is a clerical error.  See Asberry v. State, 813 S.W.2d 526, 530 (Tex. pp.C Dallas,1991, pet. ref=d) (holding the failure to include a deadly weapon finding in the judgment where record shows trier of fact made such a finding constitutes a clerical error and not an error of judicial reasoning).  Although the judgment contains a clerical error, we find no error requiring reversal or abatement for appointment of new counsel.^[1] A discussion of the brief would add nothing to the jurisprudence of the state. Furthermore, we are not to address the merits of each claim raised in an Anders brief or a pro se response when we have determined there are no arguable grounds for review.  See Bledsoe v. State, 178 S.W.3d 824, 827-28 (Tex. Crim. App. 2005).

Appellant entered a guilty plea, with a judicial confession, to the offense as charged in the indictment, and the indictment included an allegation that appellant used or exhibited a deadly weapon.  A judicial confession admitted into evidence and contained in the clerk's record is sufficient to prove appellant=s guilt.  See Pitts v. State, 916 S.W.2d 507, 510 (Tex. Crim. App. 1996).  In accepting the plea, the trial judge made a factual finding that appellant used and exhibited a deadly weapon.  That finding was omitted from the judgment, however.  An appellate court has the power to correct a trial court=s written judgment if the appellate court has the information necessary to do so.  French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992);  Cobb v. State, 95 S.W.3d 664, 668 (Tex. App.CHouston [1st Dist.] 2002, no pet.);  see also Tex. R. App. P. 43.2.

Accordingly, we reform the trial court=s judgment to include an affirmative finding of the use of a deadly weapon.  The judgment of the trial court is affirmed as reformed..

PER CURIAM

Judgment rendered and Memorandum Opinion filed October 16, 2008.

Panel consists of Chief Justice Hedges and Justices Guzman and Brown.

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

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^[1]  When our examination of the record reveals that nonfrivolous grounds for appeal exist in an Anders appeal, we ordinarily abate the appeal and remand the cause to the trial court with instructions to appoint a new attorney to file a brief raising the nonfrivolous grounds that we have identified, as well as any additional grounds that the attorney discovers.  See  Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991).  Here, however, we decline to abate the appeal and remand the cause to the trial court for the appointment of new counsel.  See Bray v. State. 179 S.W.3d 725, 729 (Tex. App.CFort Worth,2005, no pet.) (citing  Homan v. Hughes, 708 S.W.2d 449, 454 (Tex. Crim. App. 1986) for the proposition that the law does not require courts to perform useless tasks).  We instead exercise our authority to simply order the judgment in this case reformed.