Frank Wesley Newsted II v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: April 10, 2025
• Docket: 02-24-00246-CR
• Status: Published

Opinion

In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________

No. 02-24-00246-CR ___________________________

FRANK WESLEY NEWSTED II, Appellant

V.

THE STATE OF TEXAS

On Appeal from the 355th District Court Hood County, Texas Trial Court No. CR15653

Before Kerr, Birdwell, and Bassel, JJ. Memorandum Opinion by Justice Birdwell MEMORANDUM OPINION

A jury found Appellant Frank Wesley Newsted II guilty of the offense of

indecency with a child by contact, see Tex. Penal Code Ann. § 21.11(a)(1), and assessed

his punishment at six years’ confinement in the Texas Department of Criminal Justice

and no fine. The trial court sentenced Newsted in accordance with the jury verdict.

Newsted timely appealed, and the trial court certified that he had permission to do so.

See Tex. R. App. P. 25.2(a)(2), 26.2(a), 26.3.

Newsted’s appointed appellate counsel has filed a motion to withdraw and a

brief complying with Anders v. California, 386 U.S. 738, 744–45, 87 S. Ct. 1396, 1400

(1967), representing that this appeal is frivolous because the record reveals no

arguable error. In accordance with Kelly v. State, counsel provided Newsted with

copies of the brief and motion to withdraw and informed him of his right to file a

pro se response, to review the record, and to seek discretionary review pro se should

this court affirm his conviction. See 436 S.W.3d 313, 319 (Tex. Crim. App. 2014).

Counsel’s brief and motion meet the requirements of Anders by presenting a

professional evaluation of the record showing why there are no arguable grounds for

relief. See In re Schulman, 252 S.W.3d 403, 406–12 (Tex. Crim. App. 2008) (orig.

proceeding). This court gave Newsted the opportunity to file a pro se response to the

Anders brief, but he did not do so; likewise, the State did not file a brief.

After an appellant’s appointed attorney files a motion to withdraw on the

ground that an appeal is frivolous and fulfills the requirements of Anders, we must

2 independently examine the record for any arguable ground that may be raised on the

appellant’s behalf. See Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991).

Only then may we grant counsel’s motion to withdraw. See Penson v. Ohio, 488 U.S. 75,

82–83, 109 S. Ct. 346, 351 (1988). We agree with counsel that this appeal is wholly

frivolous and without merit; we find nothing in the record that arguably might

support an 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).

We therefore grant counsel’s motion to withdraw.

We have, however, noted two clerical errors in the judgment. We have the

power to modify the trial court’s judgment to make the record speak the truth when

we have the necessary information to do so. Bigley v. State, 865 S.W.2d 26, 27–28 (Tex.

Crim. App. 1993); Mayo v. State, 690 S.W.3d 103, 109 (Tex. App.—Amarillo 2024, pet.

ref’d) (op. on reh’g). We have the power to reform whatever the trial court could

have corrected by a judgment nunc pro tunc when the evidence necessary to correct

the judgment appears in the record. Mayo, 690 S.W.3d at 109; Asberry v. State, 813

S.W.2d 526, 529 (Tex. App.—Dallas 1991, pet. ref’d). This power does not depend

on a party’s request, nor does it turn on whether a party has objected in the trial court.

Mayo, 690 S.W.3d at 109; Asberry, 813 S.W.2d at 529–30.

Specifically, the judgment reflects a $100 fine. But the jury did not assess a

fine, and the trial court did not order one when sentencing Newsted. Thus, that

portion of the judgment should reflect no fine.

3 The $100, though, should be added to the court costs. See Tex. Code Crim.

Proc. Ann. art. 102.0186. The portion of the judgment reflecting court costs of $335

should thus be adjusted to reflect $435.

Accordingly, we (1) delete the $100 fine and modify the judgment to reflect no

fine and (2) delete the $335 in court costs and modify the judgment to reflect $435 in

court costs. We affirm the trial court’s judgment as modified.

/s/ Wade Birdwell

Wade Birdwell Justice

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

Delivered: April 10, 2025