## NUMBER 13 -21-00242- CR COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI

– EDINBURG

KELLY THOMAS KLEINMAN N, Appellant,

v. THE STATE OF TEXAS , Appellee.
On appeal from the 36 th District Court of Aransas C ounty, Texas.



## MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Longoria and Tijerina Memorandum Opinion by Chief Justice Contreras Appellant Kelly Thomas Kleinman n pleaded guilty to the offense of driving while intoxicated (third or more offense), a third

- degree felony

. See T EX

. P ENAL C ODE A NN

. §§ 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 fifteen2 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. **A NDERS**  B RIEF 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, 40 6 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 c arefully 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 appellant3 of his right s to file pro se response s , to review the record prior to filing those response s , 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 , 43 6 S.W.3d at 319

– 20; see also In re Schulman , 252 S.W.3d at 40 8

– 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

. I NDEPENDENT R EVIEW & M ODIFICATION 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 supp ort a n 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 requirement s of Texas Rule of Appellate Procedure 47.1. ” ) ; Stafford , 813 S.W.2d at 5 11

. However, we discovered through our independent review that the “ Statute for Offense ” section of the trial court ’ s judgment incorrectly list s Texas P enal C ode § 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 T EX

. R. A PP

. P. 43.2(b);4 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 T EX

. P ENAL C ODE A NN

. § 49.09(b)(2). Having p leaded 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) re place “ 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 T EX

. R. A PP

. P. 43.2(b); Bigley , 865 S.W.2d at 27

– 28; Asberry , 813 S.W.2d at 529

– 30.
III. M OTION TO W ITHDRAW 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 ordere d 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 T EX

. R. A PP

. P. 48.4; see also In re Schulman , 252 S.W.3d at 41 1 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 revie w 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 T EX

. R. A PP

. P. 68.2. A ny petition for discretionary review must be filed with the C lerk 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. 68.4.5 IV. C ONCLUSION We affirm the trial court ’ s judgment as modified

. DORI CONTRERAS Chief Justice Do not publish. T EX

. R. A PP

. P. 47.2 ( b ). Delivered and filed on the 7th day of Ju ly , 202 2

.