Gary Carey v. State

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-19-00355-CR

GARY CAREY, APPELLANT

V.

STATE OF TEXAS, APPELLEE

On Appeal from the 361st District Court of Brazos County, Texas Trial Court No. 15-01005-CRF-361, Honorable Steve Smith, Presiding

March 11, 2021

MEMORANDUM OPINION Before QUINN, C.J., and PIRTLE and PARKER, JJ.

Gary Carey appeals the trial court’s judgment convicting him of theft of property

valued between $1,500 and $20,000. A Brazos County jury found appellant guilty of theft,

and the trial court heard punishment, after which it imposed an enhanced punishment of

six years’ imprisonment. Appellant filed an appeal.1

1 Because this appeal was transferred from the Tenth Court of Appeals, we are obligated to apply

its precedent when available in the event of a conflict between the precedents of that court and this Court. See TEX. R. APP. P. 41.3. Appellant’s counsel has filed a motion to withdraw together with an Anders brief.2

Through those documents, he certifies to the Court that, after diligently searching the

record, the appeal is without merit. Accompanying the brief and motion is a copy of a

letter sent by counsel to appellant informing the latter of counsel’s belief that there is no

reversible error and of appellant’s right to file a response, pro se, to counsel’s motion to

withdraw and Anders brief. So too did counsel provide appellant with a copy of the

appellate record as well as a motion to access the appellate record. By letter dated April

16, 2020, this Court notified appellant of his right to file his own brief or response by May

18, 2020, if he wished to do so. To date, no response has been received, nor has a

motion to extend any deadlines by which to file a pro se response.

In compliance with the principles enunciated in Anders, appellate counsel

discussed potential areas for appeal. Those areas included 1) whether the evidence was

sufficient to support appellant’s conviction, 2) whether any error might be associated with

the absence of trial court’s oral findings on enhancement allegations, and 3) whether the

three judgments nunc pro tunc that followed the original judgment were proper.

Ultimately, counsel concluded, none of the foregoing topics presented any arguable

issues. We conducted our own review of the record to assess the accuracy of counsel’s

conclusions and to uncover arguable error pursuant to In re Schulman, 252 S.W.3d 403,

406 (Tex. Crim. App. 2008), and Stafford v. State, 813 S.W.2d 503, 508 (Tex. Crim. App.

1991) (en banc). No issues of arguable merit were discovered.

However, our review did reveal an additional clerical error in the third judgment

nunc pro tunc dated October 11, 2019. In that judgment, the offense for which appellant

2 See Anders v. California, 386 U.S. 738, 744-45, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967).

2 was convicted is denoted as “THEFT PROPERTY $1,5000 – $20,000.” The record

reveals that appellant was convicted of property valued between $1,500 and $20,000,

and this valuation is consistent with the amounts outlined in the Texas Penal Code at the

time of the offense. See former TEX. PENAL CODE ANN. § 31.03(e)(4)(A) (prior to 2015

amendments which changed the applicable values, providing that the offense is a state

jail felony if the value of the property is $1,500 or more but less that $20,000). The comma

placement, the record, and the applicable law all indicate that this is a mere clerical error

in the judgment. The Court has the authority to modify a trial court’s judgment to make

the record speak the truth when it has the requisite data and information. See TEX. R.

APP. P. 43.2(b); French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992) (en banc).

We exercise that authority to effectuate this clarification and hereby modify the judgment

to reflect that appellant was convicted of the offense of theft of property with a value of

more than “$1,500” but less than $20,000.

Accordingly, counsel’s motion to withdraw is granted, and the judgment is affirmed

as modified.3

Per Curiam

Do not publish.

3 Appellant has the right to file a petition for discretionary review with the Court of Criminal Appeals.