Thomas Edward Wildman v. the State of Texas

                          NUMBER 13-20-00335-CR

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI – EDINBURG


THOMAS EDWARD WILDMAN,                                                      Appellant,

                                               v.

THE STATE OF TEXAS,                                                           Appellee.


                    On appeal from the 149th District Court
                         of Brazoria County, Texas.


                          MEMORANDUM OPINION

              Before Justices Benavides, Hinojosa, and Silva
                  Memorandum Opinion by Justice Silva

      Appellant Thomas Edward Wildman appeals a judgment revoking his community

supervision and adjudicating him guilty of three counts of online solicitation of a minor

under the age of fourteen, a second-degree felony. See TEX. PENAL CODE ANN.

§ 33.021(b)(1), (c), (f). The trial court sentenced Wildman to fifteen years’ imprisonment.

Wildman’s court-appointed 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 as

modified. 1

                                      I.      ANDERS BRIEF

       Pursuant to Anders v. California, Wildman’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, 407 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), Wildman’s

counsel carefully discussed why, under controlling authority, there is no reversible error

in the trial court’s judgment. Wildman’s counsel also informed this Court in writing that he

(1) notified Wildman that counsel filed an Anders brief and a motion to withdraw;

(2) provided Wildman with copies of both pleadings; (3) informed Wildman of his rights to



       1 This case is before this Court on transfer from the Fourteenth Court of Appeals in Houston

pursuant to a docket equalization order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN.
§ 73.001.
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file a pro se response, to review the record prior to filing a response, and to seek

discretionary review in the Texas Court of Criminal Appeals if this Court finds that the

appeal is frivolous; and (4) provided Wildman with a form motion for pro se access to the

appellate record with instructions to sign and file the motion with the court of appeals

within ten days by mailing it to the address provided. See Anders, 386 U.S. at 744; Kelly,

436 S.W.3d at 319–20; Stafford, 813 S.W.2d at 510 n.3; see also In re Schulman, 252

S.W.3d at 409 n.23. Wildman has been provided access to the appellate record. Wildman

filed a motion to extend the time to file a pro se response, which was granted, extending

the deadline to April 16, 2021. However, adequate time has passed, and Wildman has

not filed a pro se response.

                               II.    INDEPENDENT REVIEW

      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 counsel’s brief and the entire record, and we have found

nothing that would support a finding of reversible error. 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 requirement of Texas Rule

of Appellate Procedure 47.1.”); Stafford, 813 S.W.2d at 509.

                               III.   MOTION TO WITHDRAW

      In accordance with Anders, Wildman’s attorney 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


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at 408 n.17 (citing Jeffery v. State, 903 S.W.2d 776, 779–80 (Tex. App.—Dallas 1995, no

pet.)). We grant counsel’s motion to withdraw. Within five days of the date of this Court’s

opinion, counsel is ordered to send a copy of this opinion and this Court’s judgment to

Wildman and to advise him of his right to file a petition for discretionary review. 2 See TEX.

R. APP. P. 48.4; see also In re Schulman, 252 S.W.3d at 412 n.35; Ex parte Owens, 206

S.W.3d 670, 673 (Tex. Crim. App. 2006).

                                    IV.      JUDGMENT MODIFICATION

        During our independent review of the record, we observed a clerical error in the

judgment, which sets forth that Wildman was found guilty and convicted for counts one

and three under Texas Penal Code § 33.021(f). 3 However, subsection (f) merely sets out

the offense degrees for the different means of committing the offense of online solicitation

of a minor. See TEX. PENAL CODE ANN. § 33.021(f). Rather, Wildman was convicted under

§ 33.021(b)(1), solicitation by “communicat[ing] in a sexually explicit manner with a

minor,” which is consistent with the indictment. See id. § 33.021(b)(1); (f).

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



        2 No substitute counsel will be appointed. If Wildman seeks 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. A petition for discretionary review
must be filed with the clerk of the 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.

        Consistent with the indictment, the judgment correctly reflects that Wildman was convicted under
        3

Texas Penal Code § 33.021(c) for count two. See TEX. PENAL CODE ANN.§ 33.021(c).
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Asberry v. State, 813 S.W.2d 526, 529–30 (Tex. App.—Dallas 1991, pet. ref’d). We have

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

tunc when the information necessary to correct the judgment appears in the record. Ette

v. State, 551 S.W.3d 783, 792 (Tex. App.—Fort Worth 2017), aff’d, 559 S.W.3d 511 (Tex.

Crim. App. 2018). We conclude that the necessary information to correct the judgment

appears in the record. See id. Therefore, we modify the trial court’s judgment to reflect

that for counts one and three Wildman was convicted under Texas Penal Code

§ 33.021(b)(1).

                                   V.     CONCLUSION

       We affirm the trial court’s judgment as modified.

                                                             CLARISSA SILVA
                                                             Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed on the
15th day of July, 2021.




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