1 An ders v. Ca lifornia, 386 U .S. 738 , 87 S.C t. 1396, 18 L.Ed.2 d 492 (1967 ). 

## NO. 07-05-0055-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO PANEL D MAY 9, 2005

______________________________ WOODY COS TELLO HOR NSBY, Appellant

v. THE STA

TE OF TEX

AS, Appellee

_________________________________ FROM THE 299 TH 

## DISTRICT COURT OF TRAVIS COUNTY; NO. 5,030,112; HON. JON WISSER, PRESIDING

_______________________________ Before QUINN, REAVIS, and CAMPBELL, JJ. Appella nt, Woo dy Cost ello Ho rnsby, ap peals hi s convic tion for evading a rrest, enhanced. Pursuant to a plea of gui lty, whe rein the State agreed to waive the enhancementparagraph, the trial court found the evidence substantiated a finding of guilt and asse ssed pun ishment a t five yea rs in pri son. Appellant’s app ointed counsel has filed a motion to wi thdraw, together with an Anders 1 

## brief wherein he certified that, after diligently searching the record, he concluded thatthe appeal was without merit. Along wi th his brief, ap pellatecounsel attached a copy2 The Stat e request ed, bef ore t he tr ial court

found t he enhancement paragraph tr ue, t hat appel lant be sentence d to six ye ars o f imp rison me nt. Author it y hol ds that when the tri al court

infor ms one of an incorrect range of puni shment butthe sen tence ul ti matelylevi ed fal ls wi thi n the co rrec t r ange, t hen the c ourthas su bs tan tially compli ed wit h art . 26. 13(a) (1) of t he Code of Crim inal P roce dure

. Ma rtinez v . State , 981 S. W.2d 195, 197 (Tex. Crim. App. 199 8); Pa rrish v. S tate , No . 07-0 2-00 16-C R, 2 002 Tex . App . L EX IS 8636 (Tex. App. –A m arillo De cem ber 6 , 200 2) (no t des igna ted fo r pub lication ). Furth erm ore, w hen the co urt h a s su bs tan tially compli ed wit h the st atut ory di rect ive, it is i ncum ben t upo n th e de fend ant o r app ellant to 

## 2 of a lette r sent to appe llant informing him of counsel’s belief that there was no reversible
error and of appellant’s right to filea brief or response prose. By letter dated April 8, 2005, this court also notified appellant of his right to tender hisown brief or response and set May 2, 2005 as the deadline to doso. To date, neither a response nor a request for extension of time has been filed. In compliance with the principles enunciated in Anders , appellate counsel discussed several potential areas for appeal. They included 1) whether the plea was volu ntary, 2) whether trial counsel provided effective assis tanc e, 3) whether it was error for one judge to convictand another to sentence appellant, and 4) whe ther itwas erro r for the t rial cou rt to find the enhancement paragraph true when the State waived the allegation. Appellant then exp lained w hy each i ssue lac ked merit

. We have conducted ou r own review of the record to assess the accuracy of appella te counsel’s statements and to uncover any error per Stafford v

. State, 813 S.W.2d 503 (Tex. Crim. App. 1991). Upon ou r completing that review, we agree with the representation of appellant’s counsel that no meritorious ground exists warranting reversal of the judgment. For instance, while the trial court found the enhanc ement par a graph in the indictment to be true even though the State waived t he allega tion and presented no evidence to establish it asfact, noth ing of re cord sugg ests that the finding influenced the trial court’s decision to sentence appellant to five years in prison. 2 

## Moreover , the fiveyears“affirm ativ ely sho w[] that he was not awar e of t he consequences of hi s plea and that he was misl ed or har med by the admoni shment of the cou rt.” T EX
. C ODE
. C RIM
. P ROC
. A NN
. art. 26.1 3(c) (V erno n 19 89); Pa rrish v. S tate , supra . No thing of reco rd w ould perm it us to re aso nab ly con clud e he re tha t the sta nda rd an nou nce d in art. 26.13( c) and Parrish was sati sfi ed.

3 The punish ment range for a second degree fel ony is no t more t han 20 years orless than two ye ars and a fine n ot to ex cee d $1 0,00 0. T EX
. P EN
. C ODE A NN
. §12.33 ( Vernon 20 03). The puni shm ent range for a third degre e felony is no t more than ten y ears or les s than tw o years and a fine n ot to ex cee d $1 0,00 0. Id. 

## § 12.34. 

## 3 fell within the range of punishment applicable to both felonies of the third and second degree. 3 

## Finally, the admonishment given appel lant at his plea hearing actually pertained to a felo ny of the third deg ree. As to the judgment itself mistakenly indicatin g that ap pellant pled “NOT GUILTY” when he actually pled guil ty, we have t he authority to reform the judgment to accurately reflectthe recor

d. Nolan v. State, 39 S.W.3d 697, 698 (Tex. App.–Ho uston [1 st

## Dist.] 2001,
no pet.). And, we opt to so reform the judgment as follows. First, where the judgment states thatappella nt pled “ not guil ty,” we su bstitute the word “guilty.”Second, we redact all reference in the judgment suggesting that the enhancement paragraph of the indictment
was found t o be true. Finally, we order that the judgment reflect that appellan t was convicted of a felony of the third degree rather tha n one of the second degree. As reformed, the judgmentof the trial court is affirmed, and we grant counsel’s p ending motion to withdr aw.

Brian Quinn Justice Do not publish.