James Russel Clymer Jr. v. State

• Court: Court of Appeals of Texas
• Decided: October 30, 2019
• Docket: 09-19-00148-CR
• Status: Published

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-19-00148-CR __________________

JAMES RUSSEL CLYMER JR., Appellant

V.

THE STATE OF TEXAS, Appellee __________________________________________________________________

On Appeal from the 75th District Court Liberty County, Texas Trial Cause No. CR34236 __________________________________________________________________

MEMORANDUM OPINION

The State indicted James Russel Clymer Jr. for Continuous Sexual Abuse of

a Child, a first-degree felony. See Tex. Penal Code § 21.02(b). Pursuant to a plea

bargain agreement, Clymer pled guilty to the lesser included offense of aggravated

sexual assault of a child. See Tex. Penal Code § 22.021(a)(2)(B). On April 17, 2019,

the trial court sentenced Clymer to 60 years in the Institutional Division of the Texas

Department of Criminal Justice. Clymer timely filed a notice of appeal. The trial

1 court certified that this was a plea-bargain case and Clymer had no right of appeal

except as to punishment.

The attorney appointed to represent Clymer in his appeal filed an Anders brief

which asserted that the attorney diligently reviewed the record and found no

meritorious claims on which to appeal Clymer’s sentence and that any appeal is

frivolous. See Anders v. California, 386 U.S. 738, 744–45 (1967); High v. State, 573

S.W.2d 807, 810–13 (Tex. Crim. App. [Panel Op.] 1978). Clymer was provided an

opportunity to file his own pro se brief, and he did not do so.

We have independently reviewed the record, and 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 Stafford v. State, 813 S.W.2d 503, 511 (Tex.

Crim. App. 1991) (stating that the reviewing court must determine whether arguable

grounds for review exist). The Court concludes it is unnecessary for us to order

appointment of new counsel to re-brief this appeal. Cf. id.. As no arguable grounds

exist to support the appeal, we affirm the trial court’s judgment.

We note that the trial court’s judgment reflects an offense date of November

6, 2018. This date is incorrect as the indictment lists the offense dates of “on or about

2 the 1st day of September 2007 through the 5th day of December 2017.” 1 Clymer

pled guilty and signed a plea agreement with the following language “The

allegations in the charging instrument are true and correct. I committed the offense

alleged in the charging instrument and any lesser included offenses thereof.”

Accordingly, in the “Date of Offense” section of the trial court’s judgment, we delete

“11-06-2018” and reform it to read “On or about the 1st day of September, 2007,

through the 5th day of December, 2017.” See Tex. R. App. P. 43.2(b); Bigley v. State,

865 S.W.2d 26, 27–28 (Tex. Crim. App. 1993) (noting courts of appeals have

authority to modify a judgment). As modified, we affirm the trial court’s judgment.

AFFIRMED AS MODIFIED.

_________________________ CHARLES KREGER Justice

Submitted on October 1, 2019 Opinion Delivered October 30, 2019 Do Not Publish

Before McKeithen, C.J., Kreger and Horton, JJ.

1 The trial court was not required to amend the indictment in this case because aggravated sexual assault of a child is a lesser included offense of continuous sexual abuse of a child. See Puente v. State, 320 S.W.3d 352, 356–357 (Tex. Crim. App. 2010) (explaining that because the defendant plead guilty to a lesser included offense of aggravated sexual assault of a child, “the original indictment was already, without the necessity of an amendment, sufficient to authorize the conviction” of the lesser included offense). 3