JOSHUA WILLIAM MCLEMORE v. THE STATE OF TEXAS (2012)

MEMORANDUM OPINION

Opinion By Justice Richter

Joshua William McLemore waived a jury and pleaded guilty to aggravated robbery with a deadly weapon, a firearm.   After finding appellant guilty, the trial court assessed punishment at twenty years' imprisonment.   On appeal, appellant's attorney filed a brief in which he concludes the appeal is wholly frivolous and without merit.   The brief meets the requirements of Anders v. California, 386 U.S. 738 (1967).   The brief presents a professional evaluation of the record showing why, in effect, there are no arguable grounds to advance.   See High v. State, 573 S.W.2d 807, 811 (Tex.Crim.App. [Panel Op.] 1978).   Counsel delivered a copy of the brief to appellant.   We advised appellant of his right to file a pro se response, but he did not file a pro se response.

We have reviewed the record and counsel's brief.   See Bledsoe v. State, 178 S.W.3d 824, 827 (Tex.Crim.App.2005) (explaining appellate court's duty in Anders cases).   We agree the appeal is frivolous and without merit.   We find nothing in the record that might arguably support the appeal.

Although not an arguable issue, we note there is an error in the trial court's written judgments.   The record shows appellant entered an open guilty plea to the charges in the indictment.   The written judgment, however, recites appellant entered a plea-bargained guilty plea.   Thus, the written judgment is incorrect.   This Court has the authority to correct a trial court's judgment when it has the necessary data and information to do so.   See Tex.R.App. P. 43.2(b);  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).   We modify the written judgment to show appellant entered an open guilty plea.

As modified, we affirm the trial court's judgment.

110719F.U05 S

Court of Appeals

Fifth District of Texas at DallasJUDGMENT

JOSHUA WILLIAM MCLEMORE, Appellant

No. 05–11–00719–CR V.

THE STATE OF TEXAS, AppelleeAppeal from the 354th Judicial District Court of Hunt County, Texas.  (Tr.Ct.No.26870).

Opinion delivered by Justice Richter, Justices O'Neill and Francis participating.

Based on the Court's opinion of this date, the judgment of the trial court is MODIFIED as follows:

The section entitled “Terms of Plea Bargain” is modified to show “Open.”

As modified, we AFFIRM the trial court's judgment.

Judgment entered March 28, 2012.

/Martin Richter/

MARTIN RICHTER

JUSTICE

MARTIN RICHTER JUSTICE