                             NUMBER 13-10-548-CR

                           COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG

JERRY PAUL KELLY
AKA KENNETH KELLY,
                                                                          Appellant,

                                          v.

THE STATE OF TEXAS,                                                       Appellee.


                 On appeal from the Criminal District Court
                       of Jefferson County, Texas.


                        MEMORANDUM OPINION
    Before Chief Justice Valdez and Justices Rodriguez and Garza
            Memorandum Opinion by Justice Rodriguez
      Appellant Jerry Paul Kelly a/k/a Kenneth Kelly appeals from his conviction for the

state-jail felony offense of evading detention with a motor vehicle. See Act of May 25,

2001, 77th Leg., R.S., ch. 1334 & 1480, 2001 TEX. GEN. LAWS 3291, 3292, 2001 TEX.
GEN. LAWS 5265, 5265 (codified at TEX. PENAL CODE ANN. § 38.04(a), (b)(1)) (amended

2009) (current version at TEX. PENAL CODE ANN. § 38.04(a), (b)(1)(B) (West Supp.

2010)). 1   Kelly pleaded guilty to the offense, was assessed a $500 fine, and was

sentenced to two years' confinement, which was suspended and probated for a term of

five years. Approximately two years later, the State moved to revoke Kelly's probation;

Kelly pleaded true to the three violations alleged by the State in its motion. The trial court

then revoked Kelly's probation and sentenced him to fifteen months' confinement in the

State Jail Division of the Texas Department of Criminal Justice.

        Concluding that any appeal by Kelly in this case would be "without merit and []

frivolous," counsel filed an Anders brief in which she reviewed the merits, or lack thereof,

of the appeal. We affirm as modified.2

                           I. COMPLIANCE WITH ANDERS V. CALIFORNIA

        Pursuant to Anders v. California, 386 U.S. 738, 744 (1967), Kelly's court-appointed

appellate counsel has filed a brief with this Court, in which she states that having

"diligently review[ed] the record in this case and research[ed] the law," "[n]o reversible

error has been found in this case."              After discussing Kelly's plea agreement, the

punishment assessed in accordance with the agreement, the subsequent revocation

proceedings, and the law applicable to the foregoing, counsel concludes that "there are

no grounds upon which an appeal can be predicated." See In re Schulman, 252 S.W.3d

403, 407 n.9 (Tex. Crim. App. 2008) (orig. proceeding) ("In Texas, an Anders brief need

        1
         The date of Kelly's offense was September 19, 2007. At that time, a prior version of Texas Penal
Code section 38.04 was in effect.
        2
          This case is before the Court on transfer from the Ninth Court of Appeals in Beaumont pursuant to
an order issued by the Supreme Court of Texas. See TEX. GOV'T CODE ANN. § 73.001 (West 2005).
                                                    2
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 2003, no pet.)); Stafford v. State, 813 S.W.2d 503, 510 n.3 (Tex. Crim. App. 1991)

(en banc).

        In compliance with High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel

Op.] 1978), Kelly's counsel has, thus, carefully discussed why, under controlling authority,

there are no errors in the trial court's judgment. Counsel has informed this Court that she

has: (1) examined the record and found no arguable grounds to advance on appeal, (2)

served a copy of the brief and counsel’s motion to withdraw on Kelly, and (3) informed

Kelly of his right to review the record and to file a pro se response within thirty days. 3

See Anders, 386 U.S. at 744; Stafford, 813 S.W.2d at 510 n.3; see also In re Schulman,

252 S.W.3d at 409 n.23. More than an adequate period of time has passed, and Kelly

has not filed a pro se response. See In re Schulman, 252 S.W.3d at 409.

                                      II. INDEPENDENT REVIEW

        Upon receiving an Anders brief, this Court 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 entire record and counsel's brief, and we

have found nothing that would arguably support an appeal. See Bledsoe v. State, 178

S.W.3d 824, 826-28 (Tex. Crim. App. 2005) ("Due to the nature of Anders briefs, by

        3
          The Texas Court of Criminal Appeals has held that "the pro se response need not comply with the
rules of appellate procedure in order to be considered. Rather, the response should identify for the court
those issues which the indigent appellant believes the court should consider in deciding whether the case
presents any meritorious issues." In re Schulman, 252 S.W.3d 403, 409 n.23 (Tex. Crim. App. 2008) (orig.
proceeding) (quoting Wilson v. State, 955 S.W.2d 693, 696-97 (Tex. App.—Waco 1997, no pet.)).
                                                    3
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 of

Texas Rule of Appellate Procedure 47.1."); Stafford, 813 S.W.2d at 509. The only error

in the record is what appears to be a typographical error in both the trial court's 2008

judgment of conviction and 2010 judgment revoking community supervision.                            The

judgments list the statute for the offense as subsection "38.04(a)(1) [of the] Penal

Code"—no such subsection existed in the version of the code applicable at the time of

Kelly's offense. 4    At the time of Kelly's offense, the subsections of the penal code

establishing the state-jail felony offense for evading arrest or detention through the use of

a vehicle were sections 38.04(a) and (b)(1). See Act of May 25, 2001, 77th Leg., R.S.,

ch. 1334 & 1480, 2001 TEX. GEN. LAWS 3291, 3292, 2001 TEX. GEN. LAWS 5265, 5265

(codified at TEX. PENAL CODE ANN. § 38.04(a), (b)(1)). Accordingly, because we have the

necessary data and evidence for reformation, we modify the trial court's judgments to

reflect the correct subsections of the penal code—section 38.04(a) and (b)(1). See id.;

see also TEX. R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27 (Tex. Crim. App.

1993). We affirm the judgment of the trial court as modified.

                                     III. MOTION TO WITHDRAW

        In accordance with Anders, Kelly's attorney has asked this Court for permission to

withdraw as counsel for Kelly. See Anders, 386 U.S. at 744; see also In re Schulman,

252 S.W.3d at 408 n.17 (citing Jeffery v. State, 903 S.W.2d 776, 779-80 (Tex.

App.—Dallas 1995, no pet.) (noting that "[i]f an attorney believes the appeal is frivolous,


        4
         Neither does subsection "38.04(a)(1)" exist in the current version of the code. See generally
TEX. PENAL CODE ANN. § 38.04 (West Supp. 2010).
                                                   4
he must withdraw from representing the appellant. To withdraw from representation, the

appointed attorney must file a motion to withdraw accompanied by a brief showing the

appellate court that the appeal is frivolous.") (citations omitted)). We grant counsel's

motion to withdraw that was carried with the case on December 16, 2010. Within five

days of the date of this Court’s opinion, counsel is ordered to send a copy of the opinion

and judgment to Kelly and to advise Kelly of his right to file a petition for discretionary

review.5 See TEX. R. APP. P. 48.4; see also In re Schulman, 252 S.W.3d at 412 n.35; Ex

parte Owens, 206 S.W.3d.




                                                                            NELDA V. RODRIGUEZ
                                                                            Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
7th day of July, 2011.




        5
           No substitute counsel will be appointed. Should Kelly 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
review 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 that was
overruled by this Court. See TEX. R. APP. P. 68.2. Any petition for discretionary review must be filed with
this Court, after which it will be forwarded to the Texas Court of Criminal Appeals. See TEX. R. APP. P.
68.3; 68.7. Any petition for discretionary review should comply with the requirements of Rule 68.4 of the
Texas Rules of Appellate Procedure. See TEX. R. APP. P. 68.4.
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