Thomas Edward Wildman v. the State of Texas

NUMBER 13-20-00335-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
THOMAS EDWARD WILDMAN, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 149th District Court
of Brazoria County, Texas.
MEMORANDUM OPINION
Before Justices Benavides, Hinojosa, and Silva
Memorandum Opinion by Justice Silva
Appellant Thomas Edward Wildman appeals a judgment revoking his community
supervision and adjudicating him guilty of three counts of online solicitation of a minor
under the age of fourteen, a second-degree felony. See TEX. PENAL CODE ANN.
§ 33.021(b)(1), (c), (f). The trial court sentenced Wildman to fifteen years’ imprisonment.
Wildman’s court-appointed counsel filed an Anders brief stating that there are no arguable
grounds for appeal. See Anders v. California, 386 U.S. 738, 744 (1967). We affirm as
modified. 1
I. ANDERS BRIEF
Pursuant to Anders v. California, Wildman’s court-appointed appellate counsel
filed a brief and a motion to withdraw with this Court, stating that his review of the record
yielded no grounds of reversible error upon which an appeal can be predicated. See id.Counsel’s brief meets the requirements of Anders as it presents a professional evaluation
demonstrating why there are no arguable grounds to advance on appeal. See In re
Schulman, 252 S.W.3d 403, 407 n.9 (Tex. Crim. App. 2008) (orig. proceeding) (“In Texas,
an Anders brief need not specifically advance ‘arguable’ points of error if counsel finds
none, but it must provide record references to the facts and procedural history and set
out pertinent legal authorities.” (citing Hawkins v. State, 112 S.W.3d 340, 343–44 (Tex.
App.—Corpus Christi–Edinburg 2003, no pet.))); Stafford v. State, 813 S.W.2d 503, 510
n.3 (Tex. Crim. App. 1991).
In compliance with High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel
Op.] 1978) and Kelly v. State, 436 S.W.3d 313, 319–22 (Tex. Crim. App. 2014), Wildman’s
counsel carefully discussed why, under controlling authority, there is no reversible error
in the trial court’s judgment. Wildman’s counsel also informed this Court in writing that he
(1) notified Wildman that counsel filed an Anders brief and a motion to withdraw;
(2) provided Wildman with copies of both pleadings; (3) informed Wildman of his rights to
1 This case is before this Court on transfer from the Fourteenth Court of Appeals in Houston
pursuant to a docket equalization order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN.
§ 73.001.
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file a pro se response, to review the record prior to filing a response, and to seek
discretionary review in the Texas Court of Criminal Appeals if this Court finds that the
appeal is frivolous; and (4) provided Wildman with a form motion for pro se access to the
appellate record with instructions to sign and file the motion with the court of appeals
within ten days by mailing it to the address provided. See Anders, 386 U.S. at 744; Kelly,
436 S.W.3d at 319–20; Stafford, 813 S.W.2d at 510 n.3; see also In re Schulman, 252
S.W.3d at 409 n.23. Wildman has been provided access to the appellate record. Wildman
filed a motion to extend the time to file a pro se response, which was granted, extending
the deadline to April 16, 2021. However, adequate time has passed, and Wildman has
not filed a pro se response.
II. INDEPENDENT REVIEW
Upon receiving an Anders brief, we must conduct a full examination of all the
proceedings to determine whether the case is wholly frivolous. Penson v. Ohio, 488 U.S.
75, 80 (1988). We have reviewed counsel’s brief and the entire record, and we have found
nothing that would support a finding of reversible error. 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 requirement of Texas Rule
of Appellate Procedure 47.1.”); Stafford, 813 S.W.2d at 509.
III. MOTION TO WITHDRAW
In accordance with Anders, Wildman’s attorney asked this Court for permission to
withdraw as counsel. See Anders, 386 U.S. at 744; see also In re Schulman, 252 S.W.3d
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at 408 n.17 (citing Jeffery v. State, 903 S.W.2d 776, 779–80 (Tex. App.—Dallas 1995, no
pet.)). We grant counsel’s motion to withdraw. Within five days of the date of this Court’s
opinion, counsel is ordered to send a copy of this opinion and this Court’s judgment to
Wildman and to advise him of his right to file a petition for discretionary review. 2 See TEX.
R. APP. P. 48.4; see also In re Schulman, 252 S.W.3d at 412 n.35; Ex parte Owens, 206
S.W.3d 670, 673 (Tex. Crim. App. 2006).
IV. JUDGMENT MODIFICATION
During our independent review of the record, we observed a clerical error in the
judgment, which sets forth that Wildman was found guilty and convicted for counts one
and three under Texas Penal Code § 33.021(f). 3 However, subsection (f) merely sets out
the offense degrees for the different means of committing the offense of online solicitation
of a minor. See TEX. PENAL CODE ANN. § 33.021(f). Rather, Wildman was convicted under
§ 33.021(b)(1), solicitation by “communicat[ing] in a sexually explicit manner with a
minor,” which is consistent with the indictment. See id. § 33.021(b)(1); (f).
We may modify incorrect judgments to make the record “speak the truth” when we
have the necessary data and information, and we may do so on our own motion. See
TEX. R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27–28 (Tex. Crim. App. 1993);
2 No substitute counsel will be appointed. If Wildman seeks further review of this case by the Texas
Court of Criminal Appeals, he must either retain an attorney to file a petition for discretionary review or 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 or timely motion for en banc
reconsideration that was overruled by this Court. See TEX. R. APP. P. 68.2. A petition for discretionary review
must be filed with the clerk of the Court of Criminal Appeals. See id. R. 68.3. Any petition for discretionary
review should comply with the requirements of Texas Rule of Appellate Procedure 68.4. See id. R. 68.4.
Consistent with the indictment, the judgment correctly reflects that Wildman was convicted under
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Texas Penal Code § 33.021(c) for count two. See TEX. PENAL CODE ANN.§ 33.021(c).
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Asberry v. State, 813 S.W.2d 526, 529–30 (Tex. App.—Dallas 1991, pet. ref’d). We have
the power to modify whatever the trial court could have corrected by a judgment nunc pro
tunc when the information necessary to correct the judgment appears in the record. Ette
v. State, 551 S.W.3d 783, 792 (Tex. App.—Fort Worth 2017), aff’d, 559 S.W.3d 511 (Tex.
Crim. App. 2018). We conclude that the necessary information to correct the judgment
appears in the record. See id. Therefore, we modify the trial court’s judgment to reflect
that for counts one and three Wildman was convicted under Texas Penal Code
§ 33.021(b)(1).
V. CONCLUSION
We affirm the trial court’s judgment as modified.
CLARISSA SILVA
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed on the
15th day of July, 2021.
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