NUMBER 13-21-00242-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
KELLY THOMAS KLEINMANN, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 36th District Court
of Aransas County, Texas.
MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Longoria and Tijerina
Memorandum Opinion by Chief Justice Contreras
Appellant Kelly Thomas Kleinmann pleaded guilty to the offense of driving while
intoxicated (third or more offense), a third-degree felony. See TEX. PENAL CODE ANN.
§§ 49.04(b), 49.09(b)(2). Appellant pleaded true to the enhancement paragraph in the
indictment noting a prior felony conviction, increasing appellant’s offense level to a
second-degree felony. See id. § 12.42(a). The trial court sentenced appellant to fifteen
years’ incarceration in the Texas Department of Criminal Justice Correctional Institutions
Division. See id. § 12.33(a). Appellant’s court-appointed appellate counsel filed an Anders
brief stating that there are no arguable grounds for appeal. See Anders v. California, 386
U.S. 738, 744 (1967). We affirm the trial court’s judgment as modified.
I. ANDERS BRIEF
Pursuant to Anders v. California, appellant’s court-appointed appellate counsel
filed a brief and a motion to withdraw with this Court, stating that his review of the record
yielded no grounds of reversible error upon which an appeal can be predicated. See id.
Counsel’s brief meets the requirements of Anders as it presents a professional evaluation
demonstrating why there are no arguable grounds to advance on appeal. See In re
Schulman, 252 S.W.3d 403, 406 n.9 (Tex. Crim. App. 2008) (orig. proceeding) (“In Texas,
an Anders brief need not specifically advance ‘arguable’ points of error if counsel finds
none, but it must provide record references to the facts and procedural history and set
out pertinent legal authorities.” (citing Hawkins v. State, 112 S.W.3d 340, 343–44 (Tex.
App.—Corpus Christi–Edinburg 2003, no pet.))); Stafford v. State, 813 S.W.2d 503, 510
n.3 (Tex. Crim. App. 1991).
In compliance with High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel
Op.] 1978) and Kelly v. State, 436 S.W.3d 313, 319–22 (Tex. Crim. App. 2014),
appellant’s counsel carefully discussed why, under controlling authority, there is no
reversible error in the trial court’s judgment. Appellant’s counsel also informed this Court
in writing that he: (1) notified appellant that counsel has filed an Anders brief and a motion
to withdraw; (2) provided appellant with copies of both pleadings; (3) informed appellant
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of his rights to file pro se responses, to review the record prior to filing those responses,
and to seek discretionary review if we conclude that the appeal is frivolous; and
(4) provided appellant with a form motion for pro se access to the appellate record that
only requires appellant’s signature and date with instructions to file the motion within ten
days. See Anders, 386 U.S. at 744; Kelly, 436 S.W.3d at 319–20; see also In re
Schulman, 252 S.W.3d at 408–09. In this case, appellant filed neither a timely motion
seeking pro se access to the appellate record nor a motion for extension of time to do so.
Appellant did not file a pro se response.
II. INDEPENDENT REVIEW & MODIFICATION
Upon receiving an Anders brief, we must conduct a full examination of all the
proceedings to determine whether the case is wholly frivolous. Penson v. Ohio, 488 U.S.
75, 80 (1988). We have reviewed the 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.”); Stafford, 813 S.W.2d at 511.
However, we discovered through our independent review that the “Statute for
Offense” section of the trial court’s judgment incorrectly lists Texas Penal Code § 39.04(b)
and § 14.425 as the statutes under which appellant was convicted. We may modify
incorrect judgments to make the record “speak the truth” when we have the necessary
data and information, and we may do so on our own motion. See TEX. R. APP. P. 43.2(b);
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Bigley v. State, 865 S.W.2d 26, 27–28 (Tex. Crim. App. 1993); Asberry v. State, 813
S.W.2d 526, 529–30 (Tex. App.—Dallas 1991, pet. ref’d). A conviction for driving while
intoxicated (third or more) is punishable under § 49.09(b)(2). See TEX. PENAL CODE ANN.
§ 49.09(b)(2). Having pleaded true to a prior third-degree felony, the relevant
enhancement statute in this case is Texas Penal Code § 12.42(a). See id. § 12.42(a).
Accordingly, we modify the judgment to: (1) replace “39.04(b)” with “49.09(b)(2)”; and
(2) replace “14.425” with “12.42(a)” under the “Statute for Offense” section of the trial
court’s judgment. See TEX. R. APP. P. 43.2(b); Bigley, 865 S.W.2d at 27–28; Asberry, 813
S.W.2d at 529–30.
III. MOTION TO WITHDRAW
In accordance with Anders, appellant’s counsel asked this Court for permission to
withdraw as counsel. See Anders, 386 U.S. at 744; see also In re Schulman, 252 S.W.3d
at 408 n.17. We grant counsel’s motion to withdraw. Within five days from the date of this
Court’s opinion, counsel is ordered to send a copy of this opinion and this Court’s
judgment to appellant and to advise him of his right to file a petition for discretionary
review. 1 See TEX. R. APP. P. 48.4; see also In re Schulman, 252 S.W.3d at 411 n.35; Ex
parte Owens, 206 S.W.3d 670, 673 (Tex. Crim. App. 2006).
1 No substitute counsel will be appointed. Should appellant wish to seek further review of this case
by the Texas Court of Criminal Appeals, he must either retain an attorney to file a petition for discretionary
review or file a pro se petition for discretionary review. Any petition for discretionary review must be filed
within thirty days from the date of either this opinion or the last timely motion for rehearing or timely motion
for en banc reconsideration that was overruled by this Court. See TEX. R. APP. P. 68.2. Any petition for
discretionary review must be filed with the Clerk of the Texas Court of Criminal Appeals. See id. R. 68.3.
Any petition for discretionary review should comply with the requirements of Texas Rule of Appellate
Procedure 68.4. See id. R. 68.4.
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IV. CONCLUSION
We affirm the trial court’s judgment as modified.
DORI CONTRERAS
Chief Justice
Do not publish.
TEX. R. APP. P. 47.2 (b).
Delivered and filed on the
7th day of July, 2022.
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