In The 

Court of Appeals 

Seventh District of Texas at Amarillo

No. 07-19-00355-CR 

GARY CAREY, APPELLANT 

 

V. 

 

STATE OF TEXAS, APPELLEE 

 

On Appeal from the 361st District Court of 

Brazos County, Texas 

Trial Court No. 15-01005-CRF-361, Honorable Steve Smith, Presiding 

 

March 11, 2021 

 

MEMORANDUM OPINION 

 

Before QUINN, C.J., and PIRTLE and PARKER, JJ. 

Gary Carey appeals the trial court’s judgment convicting him of theft of property 

valued between $1,500 and $20,000. A Brazos County jury found appellant guilty of theft,

and the trial court heard punishment, after which it imposed an enhanced punishment of 

six years’ imprisonment. Appellant filed an appeal.1

1 Because this appeal was transferred from the Tenth Court of Appeals, we are obligated to apply 

its precedent when available in the event of a conflict between the precedents of that court and this Court. 

See TEX. R. APP. P. 41.3.
2

Appellant’s counsel has filed a motion to withdraw together with an Anders brief.2 

Through those documents, he certifies to the Court that, after diligently searching the 

record, the appeal is without merit. Accompanying the brief and motion is a copy of a 

letter sent by counsel to appellant informing the latter of counsel’s belief that there is no 

reversible error and of appellant’s right to file a response, pro se, to counsel’s motion to 

withdraw and Anders brief. So too did counsel provide appellant with a copy of the 

appellate record as well as a motion to access the appellate record. By letter dated April 

16, 2020, this Court notified appellant of his right to file his own brief or response by May 

18, 2020, if he wished to do so. To date, no response has been received, nor has a 

motion to extend any deadlines by which to file a pro se response.

In compliance with the principles enunciated in Anders, appellate counsel 

discussed potential areas for appeal. Those areas included 1) whether the evidence was 

sufficient to support appellant’s conviction, 2) whether any error might be associated with 

the absence of trial court’s oral findings on enhancement allegations, and 3) whether the 

three judgments nunc pro tunc that followed the original judgment were proper. 

Ultimately, counsel concluded, none of the foregoing topics presented any arguable 

issues. We conducted our own review of the record to assess the accuracy of counsel’s 

conclusions and to uncover arguable error pursuant to In re Schulman, 252 S.W.3d 403,

406 (Tex. Crim. App. 2008), and Stafford v. State, 813 S.W.2d 503, 508 (Tex. Crim. App. 

1991) (en banc). No issues of arguable merit were discovered.

However, our review did reveal an additional clerical error in the third judgment 

nunc pro tunc dated October 11, 2019. In that judgment, the offense for which appellant 

2 See Anders v. California, 386 U.S. 738, 744-45, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967).
3

was convicted is denoted as “THEFT PROPERTY $1,5000 – $20,000.” The record 

reveals that appellant was convicted of property valued between $1,500 and $20,000,

and this valuation is consistent with the amounts outlined in the Texas Penal Code at the 

time of the offense. See former TEX. PENAL CODE ANN. § 31.03(e)(4)(A) (prior to 2015 

amendments which changed the applicable values, providing that the offense is a state 

jail felony if the value of the property is $1,500 or more but less that $20,000). The comma 

placement, the record, and the applicable law all indicate that this is a mere clerical error

in the judgment. The Court has the authority to modify a trial court’s judgment to make 

the record speak the truth when it has the requisite data and information. See TEX. R.

APP. P. 43.2(b); French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992) (en banc). 

We exercise that authority to effectuate this clarification and hereby modify the judgment 

to reflect that appellant was convicted of the offense of theft of property with a value of 

more than “$1,500” but less than $20,000. 

Accordingly, counsel’s motion to withdraw is granted, and the judgment is affirmed

as modified.

3

Per Curiam

Do not publish.

3 Appellant has the right to file a petition for discretionary review with the Court of Criminal Appeals.