                                           NO. 07-05-0055-CR

                                     IN THE COURT OF APPEALS

                             FOR THE SEVENTH DISTRICT OF TEXAS

                                               AT AMARILLO

                                                  PANEL D

                                           MAY 9, 2005
                                 ______________________________

                                   WOODY COSTELLO HORNSBY,

                                                                             Appellant

                                                       v.

                                        THE STATE OF TEXAS,

                                                            Appellee
                              _________________________________

                  FROM THE 299TH DISTRICT COURT OF TRAVIS COUNTY;

                         NO. 5,030,112; HON. JON WISSER, PRESIDING
                              _______________________________

Before QUINN, REAVIS, and CAMPBELL, JJ.

       Appellant, Woody Costello Hornsby, appeals his conviction for evading arrest,

enhanced.         Pursuant to a plea of guilty, wherein the State agreed to waive the

enhancement paragraph, the trial court found the evidence substantiated a finding of guilt

and assessed punishment at five years in prison.

       Appellant’s appointed counsel has filed a motion to withdraw, together with an

Anders1 brief wherein he certified that, after diligently searching the record, he concluded

that the appeal was without merit. Along with his brief, appellate counsel attached a copy


       1
           Anders v. Ca lifornia, 386 U .S. 738, 87 S.C t. 1396, 18 L.Ed.2d 492 (1967).
of a letter sent to appellant informing him of counsel’s belief that there was no reversible

error and of appellant’s right to file a brief or response pro se. By letter dated April 8, 2005,

this court also notified appellant of his right to tender his own brief or response and set May

2, 2005 as the deadline to do so. To date, neither a response nor a request for extension

of time has been filed.

        In compliance with the principles enunciated in Anders, appellate counsel discussed

several potential areas for appeal. They included 1) whether the plea was voluntary, 2)

whether trial counsel provided effective assistance, 3) whether it was error for one judge

to convict and another to sentence appellant, and 4) whether it was error for the trial court

to find the enhancement paragraph true when the State waived the allegation. Appellant

then explained why each issue lacked merit.

        We have conducted our own review of the record to assess the accuracy of

appellate counsel’s statements and to uncover any error per Stafford v. State, 813 S.W.2d

503 (Tex. Crim. App. 1991).               Upon our completing that review, we agree with the

representation of appellant’s counsel that no meritorious ground exists warranting reversal

of the judgment. For instance, while the trial court found the enhancement paragraph in

the indictment to be true even though the State waived the allegation and presented no

evidence to establish it as fact, nothing of record suggests that the finding influenced the

trial court’s decision to sentence appellant to five years in prison.2 Moreover, the five years


        2
         The State requested, before the trial court found the enhancement paragraph true, that appellant be
sentenced to six ye ars of imprisonme nt. Authority holds that when the trial court informs one of an incorrect
range of punishment but the sentence ultimately levied falls within the correct range, then the court has
substantially complied with art. 26.13(a)(1) of the Code of Crim inal Proce dure . Ma rtinez v . State , 981 S.W.2d
195, 197 (Tex. Crim. App. 1998); Parrish v. S tate, No. 07-02-00 16-C R, 2002 Tex . App . L EX IS 8636 (Tex.
App.–A marillo Decem ber 6 , 2002) (no t designated for pub lication). Furtherm ore, w hen the co urt has
substantially complied with the statutory directive, it is incumben t upo n the de fend ant or app ellant to

                                                        2
fell within the range of punishment applicable to both felonies of the third and second

degree.3 Finally, the admonishment given appellant at his plea hearing actually pertained

to a felony of the third degree.

          As to the judgment itself mistakenly indicating that appellant pled “NOT GUILTY”

when he actually pled guilty, we have the authority to reform the judgment to accurately

reflect the record. Nolan v. State, 39 S.W.3d 697, 698 (Tex. App.–Houston [1st Dist.] 2001,

no pet.). And, we opt to so reform the judgment as follows. First, where the judgment

states that appellant pled “not guilty,” we substitute the word “guilty.” Second, we redact

all reference in the judgment suggesting that the enhancement paragraph of the indictment

was found to be true. Finally, we order that the judgment reflect that appellant was

convicted of a felony of the third degree rather than one of the second degree. As

reformed, the judgment of the trial court is affirmed, and we grant counsel’s pending motion

to withdraw.



                                                                      Brian Quinn
                                                                        Justice

Do not publish.




“affirm atively show[] that he was not aware of the consequences of his plea and that he was misled or harmed
by the admonishment of the cou rt.” TE X . C O D E . C RIM . P R O C . A N N . art. 26.1 3(c) (V erno n 19 89); Parrish v. S tate,
supra. Nothing of reco rd would perm it us to reaso nab ly con clude he re that the sta nda rd an nou nce d in art.
26.13(c) and Parrish was satisfied.

          3
          The punishment range for a second degree felony is not more than 20 years or less than two years
and a fine n ot to ex cee d $1 0,00 0. T E X . P E N . C O D E A N N . §12.33 (Vernon 2003). The punishment range for
a third degree felony is no t more than ten years or less than tw o years and a fine n ot to ex cee d $1 0,00 0. Id.
§12.34.

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