Michael Wayne Starnes v. State

• Court: Court of Appeals of Texas
• Decided: October 14, 2020
• Docket: 09-20-00076-CR
• Status: Published

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-20-00076-CR __________________

MICHAEL WAYNE STARNES, Appellant

V.

THE STATE OF TEXAS, Appellee

__________________________________________________________________

On Appeal from the 411th District Court Polk County, Texas Trial Cause No. 27075 __________________________________________________________________

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

2 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.

_________________________ 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