Ronnie McDonald, Appellant v. The State of Texas, Appellee (2012)

M E M O R A N D U M O P I N I O N

Following a bench trial, the court found Ronnie McDonald guilty of the third-degree felony offense of assault with bodily injury on a family member and assessed punishment, enhanced by a prior conviction of assault on a family member with bodily injury, at ten years in prison.   See Act of May 31, 2009, 81st Leg., R.S., ch. 665, § 2, 2009 Tex. Gen. Laws 1487, 1488 (current version at Tex. Penal Code Ann. § 22.01(b)(2)(A) (West 2011)).

McDonald's court-appointed attorney has filed a motion to withdraw supported by a brief concluding that this appeal is frivolous and without merit.   The brief meets the requirements of Anders v. California, 386 U.S. 738, 744 (1967), by presenting a professional evaluation of the record demonstrating why there are no arguable grounds to be advanced.   See also Penson v. Ohio, 488 U.S. 75 (1988);  High v. State, 573 S.W.2d 807 (Tex.Crim.App.1978);  Currie v. State, 516 S.W.2d 684 (Tex.Crim.App.1974);  Jackson v. State, 485 S.W.2d 553 (Tex.Crim.App.1972);  Gainous v. State, 436 S.W.2d 137 (Tex.Crim.App.1969).   McDonald received a copy of counsel's brief and was advised of his right to examine the appellate record and to file a pro se brief.   See Anders, 386 U.S. at 744.   McDonald did not file a pro se brief and did not request an extension of time.

We have reviewed the record and find no reversible error.   See Garner v. State, 300 S.W.3d 763, 766 (Tex.Crim.App.2009);  Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex.Crim.App.2005).   We agree with counsel that the appeal is frivolous.   Counsel's motion to withdraw is granted.

However, we conclude that the August 10, 2011 judgment of conviction contains a clerical error, listing the statute for offense as “22.01(d)(3) Penal Code.” This Court has the authority to modify incorrect judgments when the necessary information is available 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);  see also Brooks v. State, No. 03–08–00114–CR, 2008 Tex.App. LEXIS 6216, at *2–3 (Tex.App.—Austin Aug. 14, 2008, no pet.) (mem. op., not designated for publication) (modifying judgment to correct citation).   Accordingly, we modify the judgment to reflect the proper citation to the statute for the third-degree felony offense of assault with bodily injury on a family member, which is “22.01(b)(2) Penal Code.” As modified, the judgment of conviction is affirmed.

Modified and, as Modified,

Jeff Rose, Justice