### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03
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- 00548
- CR NO. 03
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- 00 549
- CR

Perry Wiley, Appellant

v. The State of Texas, Appellee

FROM THE 147TH DISTR ICT COURT OF TRAVIS COUNTY NO S . D
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- DC
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- 202954 & D
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- DC
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- 202955 , THE HONORABLE WILFORD FLOWERS, JUD GE PRESIDING

M E M O R A N D U M O P I N I O N A jury found a ppellant Perry Wiley guilty of harassment of a publi c servant , s ee Tex. Penal Code § 22.11(a)(3) , and obstruction or retaliation , s ee id. § 36.06(a)(1) (A)

. Appellant
p l ed true to an enhancement paragraph in each of the indictment s , and , pursuant t o the repeat offender punishment provision of the Penal Code , the jury assessed a ppellant ’ s punishment at confinement in the Texas Department of Cr iminal Justice for twenty yea r s fo r each offense

. See
id. § 12.42(c)(1)

. The trial court entered judgments in accordance with the jury ’ s verdict s , ordering the se ntences to be served concurrently

. See id. § 3.03(b)(2)(A).

Appellant’s court

- appointed attorney has filed a motion to withdraw supported by a brief concluding that the appeal s are frivolous and without merit. The brief meets the requirement s of Anders v. Cali fornia by presenting a professional evaluation of the record demonstrating why there are no arguable grounds to b e a dvanced. See Anders v. California ,2

386 U.S. 738, 744 (1967); Garner v. State , 300 S.W.3d 763, 766 (Tex. Crim. App. 2009) ; see also Penson v . Ohio , 488 U.S. 75, 81

– 82 (1988).

Appellant’s counsel has certified to this Court that he sent copies of the m o ti on and brief to appellant, advised appellant of his right to examine the appellate record and file a pro se response, and provided a motion t o assist appellant in obtaining the record. See Kelly v. State , 436 S.W.3d 313, 319

– 20 (Tex. Crim. App. 2014); s ee also Anders , 386 U.S. at 744. Appellant requested access to the appellate record, and , pursuant to this Court’s order , th e clerk of the trial court provided written verification to this Court that the record was provided to appellant. See Kelly , 436 S .W .3d at 321. Appellant requested an extension of time to file a response, which this Court granted

. Appellant filed a pro se response b ut did not identify any meritorious grounds for appellate review. 1

We have conducted an independent review o f the r e co rd

— including the record of
the trial p roceedings below , appellate counsel’s bri ef , and appellant ’ s pro se response

— and find
no reversible error. See Anders , 386 U.S. at 744; Garner , 300 S.W.3d at 766; Bledsoe v. State , 178 S.W.3d 824, 82 6

– 27 (Tex. Crim

. A pp. 2005). We agree with counsel that the record

1 In his response, appellant presents various complaints relating to his appellate attorney ’s alleged conduct, the trial court ’s alleged actions , and his trial attorney ’s allege d co nduct

. On this record , we cannot conclude that appellant ’s unsubstantiated contentions present non - fri v olous issues or raise meritorious grounds for appellant review. See McCoy v. Court of A ppeals , 486 U.S. 429, 436, 438 n. 10 (1988) ( describing frivo lous issue as one that “lacks any basis in law or fact” and that “cannot conceivably persuade the court”) ; s ee also Thompson v. State , 9 S.W.3d 808, 814 (Tex. Crim. App. 1999) ( e xplaining that because record on direct appeal is undeveloped in most instance s, c olla teral attack via application for writ of habeas is preferred vehi cle for pursuing claim of ineffective assistance of cou nsel)

.3

presents no arguab ly meritorious gro unds for review and the ap peal s are frivolous. Counsel’s motion to withdraw is granted

. 2

Howe ver, through our ind ependent review of the record, we note t hat the tria l

co urt ’ s written judgment s of conviction contain non - reversible errors.

First, t he judgment of conviction for har assment of a public servant states that the
“Statu te for Offense” is “ PC 22.11(b) .” Th is statutory provision establish es that t he offense o f
ha ra ssment of a public servant is a third

- degree felony. However, the applicable statutory provision for the hara ssment offense for which appellant was conv icted is section 22.11(a)(3) of the Penal Code, the statutory provision that define s the offense o f h arassment of a public serv ant

as charged in t his case

. Similarly , t he judgment of conviction for obstruction or retaliation states that the “Statu te for Offense” is “ PC 36.06( c) .” Th is statutory provision establish es that the
offense of o bstruction o r re taliation is , generally, a third

- degree felony. However, the applic able statutory provision for the obstruction or retaliation offense for which appellant was conv icted is
section 36.06 (a)(1)(A ) of the Penal Code, the statutory provi sion t hat defines t he offense of
obstruction or retaliation as charged in t his case

.

2 Appointed counsel certified to this Co urt that he advised appella nt of his right to seek discretionary review pro se s houl d this Court declare his a pp eal frivolous. In addition, appellant was informed of his right to file a pro se petition for discr etionary review upon execution of the Trial Court’s Certification of De fen dant’s Right of Appeal . Nevertheless, appoin ted c ouns e l must comply with Rule 4 8. 4 of the Texas Rules of Appel late Procedure, which mandates that counsel send appellant a copy of th is Court’s opinion and judgment a long with n otification of his right to fi le a pro se petition for discretionary review wi th in f i ve days after this opinio n is handed down. See Tex. R. App. P. 48.4; see In re Schulman , 252 S.W.3d 403, 411 n.35 (Tex. Crim. App. 2008). The duty to send app ellant a co py of this Court’s decision is an informational one, not a representational on e. Se e In re Schulman , 252 S.W. 3d at 411 n.33. It is minister ial in nature, does not involve legal advice, and exists after this Cou rt has granted counsel’s motion t o withdraw. See id.4 Sec ond, each judgment state s that appellant was convicted of a second

- degree felony. However, the offense of harassment of a public servant is a thir d

- degree felony, see Tex.
Penal Code § 22 .11( b ) , and the offense of obstruction or retaliation , as charged i n this case, is a
third

- degree felony, see id

. § 36.06(c)

. While appell ant pled true to the enhancement paragraph
of each indictment, which alleged a pr ior felony convictio n and result e d i n appellant being punished as a repeat offender, see id. § 12.42( c ) ( 1) , the punishment range, not t he degree of offense, was enhanced. See Fo rd v. State , 334 S.W.3d 230, 234 (Tex. Crim. App. 2011) (noting
Court of Crimi nal Appeals ’ prior r ecognition “ t hat Penal Code Section 12.42 increases the range of punishment applicab le to the primary offense; it d oes not incre ase the severity level or g rad e of the primary offense”) ; see also Ex parte Reinke , 370 S.W.3d 387, 389 (Tex . Crim. App. 2012) ( drawing dist i nct ion between “enhancing the level of the offense and enhancing the le vel of punishment”). Thus, the trial court ’ s judgment s of convict ion , whi ch state that th e offense of
conviction is a second

- degree felon y , are erroneous. Each ju dgment s hould reflec t th at appellant
was convicted of a third

- degree felony.

This Court ha s authority to modify incorrect judgments w h en the necessary
informatio n i s available to do so. See Tex. R. App. P. 43.2(b); Bigley v. State , 865 S.W.2d 26,
27

– 28 (Tex. Cr im. App. 199 3 ). Accordingly, we modif y the judgment of conviction for
harassment of a public servant to reflect that the “Stat u te for Offense” is “ PC 22.1 1(a )(3) ” and
the “ Degree of O ffense ” is “ 3 rd degree felony. ” W e modif y the judgment of conviction fo r obstructio n or retaliat ion to reflect that the “Statute for Offense” is “ PC 36.06 ( a)( 1 ) ( A) ” and the “Degree of O ffe nse ” is “ 3 r d degree felony. ”

As so m odi fied, the trial court ’ s judgment s of conviction are aff i r med

.5 _________________ __________________ _______ Edw ard Smith , Justice
Before C hie f Justice Rose, Justices T riana a n d Smith Modified and, as Modified, Affirmed
Filed: January 31, 2020
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