Michael Wayne Starnes v. State

In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-20-00076-CR
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MICHAEL WAYNE STARNES, Appellant
V.
THE STATE OF TEXAS, Appellee
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On Appeal from the 411th District Court
Polk County, Texas
Trial Cause No. 27075
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MEMORANDUM OPINION
A grand jury indicted Michael Wayne Starnes (Starnes or Appellant) for
retaliation, a third-degree felony. See Tex. Penal Code Ann. § 36.06. Appellant
pleaded “not guilty,” a jury found him guilty of the offense charged, and the trial
court assessed punishment at ten years of confinement. Appellant timely appealed.
On appeal, Appellant’s court-appointed attorney filed a brief stating that he
has reviewed the case and, based on his professional evaluation of the record and
applicable law, he concluded that the appeal lacks merit and that there are no
1
arguable grounds for reversal. See Anders v. California, 386 U.S. 738 (1967); High
v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978). We granted an extension of time
for Starnes to file a pro se brief, and Starnes filed no response.
Upon receiving an Anders brief, this Court must conduct a full examination
of all the proceedings to determine whether the appeal is wholly frivolous. Penson
v. Ohio, 488 U.S. 75, 80 (1988) (citing Anders, 386 U.S. at 744). We have reviewed
the entire record and counsel’s brief, and we have found nothing that would arguably
support an appeal. See Bledsoe v. State, 178 S.W.3d 824, 827-28 (Tex. Crim. App.
2005) (“Due to the nature of Anders briefs, by indicating in the opinion that it
considered the issues raised in the briefs and reviewed the record for reversible error
but found none, the court of appeals met the requirements of Texas Rule of Appellate
Procedure 47.1.”). Therefore, we find it unnecessary to order appointment of new
counsel to re-brief the appeal. Compare Stafford v. State, 813 S.W.2d 503, 511 (Tex.
Crim. App. 1991).
That said, we find that the written judgment of conviction in this case contains
a non-reversible clerical error. The trial court’s judgment contains a clerical error
because it incorrectly reflects that the jury assessed punishment, whereas the record
reflects that the court assessed punishment. This Court has the authority to modify
the trial court’s judgment to correct clerical errors. See Tex. R. App. P. 43.2(b)
(providing that the court of appeals may “modify the trial court’s judgment and
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affirm it as modified”); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App.
1993) (concluding that the court of appeals has the power to reform judgments to
correct clerical errors); Hopper v. State, 483 S.W.3d 235, 240-41 (Tex. App.—Fort
Worth 2016, pet. ref’d) (modifying judgment to reflect that the trial court, not the
jury, assessed punishment). Accordingly, we modify the trial court’s judgment in
Trial Court Cause Number 27075 to reflect that the court assessed punishment, and
we affirm the trial court’s judgment as modified. 1
AFFIRMED AS MODIFIED.
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LEANNE JOHNSON
Justice
Submitted on October 1, 2020
Opinion Delivered October 14, 2020
Do Not Publish
Before McKeithen, C.J., Horton and Johnson, JJ.
1
Starnes may challenge our decision in this case by filing a petition for
discretionary review. See Tex. R. App. P. 68.
3