Robert Vernon Clark, Jr. v. The State of Texas--Appeal from 159th District Court of Angelina County

NO. 12-06-00117-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

ROBERT VERNON CLARK, JR., APPEAL FROM THE 159TH

APPELLANT

V. JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE ANGELINA COUNTY, TEXAS

MEMORANDUM OPINION

PER CURIAM

Robert Vernon Clark, Jr. appeals his conviction for robbery. After finding him guilty, the jury assessed punishment at thirty-two years of imprisonment. Appellant s counsel filed a brief in compliance with Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967) and Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969). Thereafter, Appellant filed a pro se brief and an amended brief. We modify the judgment and affirm it as modified.

Background

Appellant entered a plea of not guilty and invoked his right to a jury trial. After hearing the evidence, the jury found him guilty of robbery as charged in the indictment. After the sentencing phase, the jury assessed punishment at imprisonment in prison for thirty-two years. The judgment, however, reflects a sentence of thirty-three years of imprisonment. This appeal followed.

Analysis Pursuant to Anders v. California

Appellant s counsel filed a brief in compliance with Anders and Gainous, stating that he has diligently reviewed the appellate record and is of the opinion that the record reflects no reversible error and that there is no error upon which an appeal can be predicated. He further relates that he is well acquainted with the facts in this case. In compliance with Anders, Gainous, and High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978), Appellant s brief presents a chronological summation of the procedural history of the case, and further states that Appellant s counsel is unable to raise any arguable issues for appeal.

Thereafter, Appellant filed a pro se brief in which he raised issues concerning the jury charge, sufficiency of the evidence, ineffective assistance of counsel, the validity of the complaint, a variance between the testimony and the exhibits, and malicious prosecution. He later filed an amended brief presenting additional argument on his issue regarding the validity of the complaint. We have reviewed the record for reversible error and have found none. See Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005).

However, as stated above, the judgment does not correctly reflect the jury s sentencing determination. Where a judgment and sentence improperly reflect the findings of the jury, the proper remedy is the reformation of the judgment. See Harris v. State, 565 S.W.2d 66, 70 (Tex. Crim. App. 1978) (reformed judgment, which reflected a ten year sentence, to show punishment of fifteen years assessed by jury). This court has the power to correct and reform the judgment of the court below to make the record speak the truth when it has the necessary data and information to do so. Asberry v. State, 813 S.W.2d 526, 529 (Tex. App. Dallas 1991, pet. ref d). This is so even though this is an Anders case. See Bray v. State, 179 S.W.3d 725, 729 (Tex. App. Fort Worth 2005, no pet.). Accordingly, we modify the trial court s judgment to read that the sentence imposed was imprisonment for thirty-two years.

Conclusion

As required by Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991), Appellant s counsel has moved for leave to withdraw. We carried the motion for consideration with the merits of the appeal. Having done so and finding no reversible error, Appellant s counsel s motion for leave to withdraw is hereby granted. The trial court s judgment is affirmed as modified.

Opinion delivered March 14, 2007.

Panel consisted of Worthen, C.J., Griffith, J., and DeVasto, J.

(DO NOT PUBLISH)