Westyn Gregory Whetstone v. the State of Texas

• Court: Texas Court of Appeals, 7th District (Amarillo)
• Decided: February 5, 2026
• Docket: 07-25-00211-CR
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-25-00211-CR No. 07-25-00212-CR

WESTYN GREGORY WHETSTONE, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the County Court at Law Moore County, Texas Trial Court Nos. 32574 & 32544, Honorable Jerod Pingelton, Presiding

February 5, 2026 MEMORANDUM OPINION Before PARKER, C.J., and DOSS and YARBROUGH, JJ.

Appellant, Westyn Gregory Whetstone, appeals from the trial court’s judgments

finding him guilty of criminal mischief 1 and criminal trespass. 2 For each conviction, he

was sentenced to 180 days’ incarceration and a $1,000 fine. 3 Appellant’s court-appointed

1 See TEX. PENAL CODE § 28.03(a)(1), (b)(2).

2 See TEX. PENAL CODE § 30.05(a).

3 Appellant, on the record, agreed to have the two cases heard at the same time. appellate counsel filed motions to withdraw supported by Anders 4 briefs. We grant

counsel’s motions, affirm the criminal mischief judgment, and reform the criminal trespass

judgment and affirm it as reformed.

In support of her motion to withdraw, counsel has certified that she has conducted

a conscientious examination of the record, and, in her opinion, the record reflects no

reversible error upon which an appeal can be predicated. Id. at 744; In re Schulman, 252

S.W.3d 403, 406 (Tex. Crim. App. 2008). In compliance with High v. State, 573 S.W.2d

807, 813 (Tex. Crim. App. [Panel Op.] 1978), counsel has discussed why, under the

controlling authorities, the record presents no reversible error. In a letter to Appellant,

counsel notified him of her motion to withdraw; provided him with a copy of the motion,

Anders brief, and appellate record; and informed him of his right to file a pro se response.

See Kelly v. State, 436 S.W.3d 313, 319–20 (Tex. Crim. App. 2014) (specifying appointed

counsel’s obligations on the filing of a motion to withdraw supported by an Anders brief).

By letter, this Court also advised Appellant of his right to file a pro se response to

counsel’s Anders brief. Appellant has not filed a response. The State did not file a brief.

By her Anders brief, counsel discusses areas in the record where reversible error

may have occurred but concludes that the appeal is frivolous. We have independently

examined the record to determine whether there are any non-frivolous issues that were

preserved in the trial court which might support an appeal, but we have found no such

issues. See Penson v. Ohio, 488 U.S. 75, 80, 109 S. Ct. 346, 102 L. Ed. 2d 300 (1988);

In re Schulman, 252 S.W.3d at 409; Gainous v. State, 436 S.W.2d 137, 138 (Tex. Crim.

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

2 App. 1969). Following our careful review of the appellate record and counsel’s brief, we

conclude that there are no grounds for appellate review that would result in reversal of

Appellant’s conviction or sentence.

However, in our independent review, we note that the trial court’s criminal trespass

judgment contains a clerical error. The “Offense for Which Defendant Convicted” in the

summary section of this judgment reads “Crim Trespass Habit/Shltr/Suprfund/Infstrt,” the

“Statute for Offense” section reflects Appellant was convicted under Texas Penal Code

section 30.05(d)(3)(A), and the “Degree of Offense” section states “Class A

Misdemeanor.” While Appellant was initially charged with criminal trespass of a

habitation, the record reflects that the State expressly abandoned the habitation allegation

and proceeded with a Class B criminal trespass charge under Texas Penal Code section

30.05(d)(1). Appellant was advised on the record that he was being tried for the Class B

offense of criminal trespass. The record also reflects that the jury was properly charged

that Appellant was accused of a criminal trespass in the guilt-innocence charge and for a

Class B offense in the punishment charge.

We have the authority to reform the judgment of the court below to make the record

speak the truth when we have the information necessary to do so. TEX. R. APP. P. 43.2(b);

Bigley v. State, 865 S.W.2d 26, 27–28 (Tex. Crim. App. 1993). Appellate courts have the

power to reform whatever the trial court could have corrected by a judgment nunc pro

tunc where the evidence necessary to correct the judgment appears in the record.

Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.—Dallas 1991, pet. ref’d).

3 Accordingly, we reform the trial court’s criminal trespass judgment to identify the

“Offense for Which Defendant Convicted” as “Crim Trespass,” the “Statute for Offense”

as Texas Penal Code section 30.05(d)(1), and the “Degree of Offense” as “Class B

Misdemeanor.”

We grant counsel’s motions to withdraw, affirm the criminal mischief judgment, and

affirm the criminal trespass judgment as reformed. 5

Judy C. Parker Chief Justice

Do not publish.

5 Counsel shall, within five days after the opinion is handed down, send Appellant a copy of the

opinion and judgment, along with notification of Appellant’s right to file a pro se petition for discretionary review. See TEX. R. APP. P. 48.4. This duty is an informational one, not a representational one. It is ministerial in nature, does not involve legal advice, and exists after the court of appeals has granted counsel’s motion to withdraw. In re Schulman, 252 S.W.3d at 411 n.33.