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
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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.