
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



NO. 03-12-00225-CR


Mark Green, Appellant

v.

The State of Texas, Appellee




FROM THE DISTRICT COURT OF TRAVIS COUNTY, 299TH JUDICIAL DISTRICT
NO. D-1-DC-10-904077, THE HONORABLE CHARLES F. BAIRD, JUDGE PRESIDING


M E M O R A N D U M   O P I N I O N

		A jury convicted Mark Green of evading arrest with a prior conviction for evading
arrest, a state jail felony offense.  See Act of June 19, 2009, 81st Leg., R.S., ch. 1400, § 4, 2009 Tex.
Gen. Laws 4385, 4385-86 (amended 2011) (current version at Tex. Penal Code Ann. § 38.04(a),
(b)(1)(A) (West 2011)).  The jury found the enhancement paragraphs alleging two previous
sequential non-state jail felony convictions to be true and, pursuant to the state jail habitual offender
punishment provision of the penal code, assessed Green's punishment at confinement for six years
in the Texas Department of Criminal Justice.  See Act of May 29, 1995, 74th Leg., R.S., ch. 318, § 4,
1995 Tex. Gen. Laws 2734, 2734-35 (amended 2011) (current version at Tex. Penal Code Ann.
§ 12.425 (West 2011)) (providing that at trial of unaggravated state jail felony, defendant shall be
punished for second degree felony upon proof of two previous sequential felony convictions).
		Green's court-appointed attorney has filed a motion to withdraw supported by a brief
concluding that the appeal is frivolous and without merit.  The brief meets the requirements of
Anders v. California by presenting a professional evaluation of the record demonstrating why there
are no arguable grounds to be advanced.  See Anders v. California, 386 U.S. 738, 744 (1967);
Garner v. State, 300 S.W.3d 763, 766 (Tex. Crim. App. 2009); see also Penson v. Ohio, 488 U.S. 75
(1988).  Green's counsel provided a copy of the brief to his client and advised Green of his right
to examine the appellate record and file a pro se brief.  See Anders, 386 U.S. at 744; Garner,
300 S.W.3d at 766.  No pro se brief or other written response has been filed.
		We have conducted an independent review of the record and reviewed counsel's brief. 
We find no reversible error.  See Anders, 386 U.S. at 744; Garner, 300 S.W.3d at 766; Bledsoe
v. State, 178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005).  We agree with counsel that the record
presents no arguably meritorious grounds for review and the appeal is frivolous.  Counsel's motion
to withdraw is granted.
		However, we note that the judgment of conviction contains clerical errors.  The record
reflects that at the punishment phase of trial Green pled "True" to the allegations contained in the
enhancement paragraphs of the indictment.  The record further reflects that the jury found the
allegations in the enhancement paragraphs to be true.  However, the judgment reflects "N/A" as to
both the plea and findings regarding the enhancement paragraphs.
		This Court has authority to modify incorrect judgments when the necessary
information is available to do so.  See Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App.
1993); Tex. R. App. P. 43.2(b).  Accordingly, we modify the judgment to reflect that Green pled
"True" to the enhancement paragraphs of the indictment and to reflect that the findings on the
enhancement paragraphs were true. (1) See Britton v State, No. 02-10-00299-CR, 2011 WL 4345288,
at *1 (Tex. App.--Fort Worth Sept. 15, 2011) (mem. op., not designated for publication) (modifying
judgment to reflect proper plea to enhancement paragraphs before affirming conviction in frivolous
appeal under Anders).
		As modified, the judgment of conviction is affirmed.

						__________________________________________
						Melissa Goodwin, Justice
Before Chief Justice Jones, Justices Rose and Goodwin
Modified and, as Modified, Affirmed
Filed:   December 6, 2012
Do Not Publish
1.   We received a supplemental clerk's record containing a nunc pro tunc judgment entered
by the trial court in this case.  However, Rule 23 of the Texas Rules of Appellate Procedure, which
governs nunc pro tunc proceedings in criminal cases, provides that "unless the defendant has
appealed, a failure to render judgment and pronounce sentence may be corrected at any time by the
trial court."  See Tex. R. App. P. 23.1 (emphasis added); see also Tex. R. App. P. 25.2(g) (once
record has been filed in appellate court, all further proceedings in trial court are suspended until trial
court receives appellate-court mandate).  Because this case was appealed by the defendant and the
record had been filed in this Court but no mandate yet issued, the trial court did not have authority
to enter the nunc pro tunc judgment.  Moreover, we note that while the nunc pro tunc judgment
corrects the plea and findings relating to the first enhancement paragraph, it fails to correct the plea
and findings relating to the second enhancement paragraph.
