       TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-18-00787-CR


                                  Emmanuel Grear, Appellant

                                                 v.

                                  The State of Texas, Appellee


               FROM THE 299TH DISTRICT COURT OF TRAVIS COUNTY
       NO. D-1-DC-15-204897, THE HONORABLE KAREN SAGE, JUDGE PRESIDING



                            MEMORANDUM OPINION


               Emmanuel Grear was charged with aggravated robbery. See Tex. Penal Code

§§ 29.02-.03. Per a plea-bargain agreement, Grear agreed to plead guilty in exchange for the

State reducing the charged offense of aggravated robbery to robbery. See id. The district court

found that there was sufficient evidence to find Grear guilty of robbery, deferred his adjudication

of guilt, and placed him on community supervision for ten years. See Tex. Code Crim. Proc.

art. 42A.101. Approximately a year later, the State filed a motion to revoke Grear’s community

supervision and to adjudicate his guilt. The State’s motion contained twenty-five paragraphs

alleging that Grear violated the conditions of his community supervision in multiple ways,

including by committing subsequent offenses. After hearing testimony at the adjudication hearing,

the district court found the following allegations to be true: Grear “failed to avoid the use of all

narcotics, habit forming drugs, alcoholic beverages, and controlled substances” as evidenced by

his testing positive for marijuana on two occasions; “failed to report to the supervision office
as directed” on five occasions; “failed to submit a urine or breath specimen for the random

UA program on” eight occasions; failed to pay court costs, restitution, a crime-stopper fee, and

an arrest fee; and “failed to complete 250 hours of Community Service Restitution.” The district

court granted the State’s motion, adjudicated Grear guilty of robbery, revoked his community

supervision, and assessed his punishment at eighteen years’ imprisonment. See id. arts. 42A.751,

.755; Tex. Penal Code § 12.33. Grear appeals the district court’s judgment adjudicating his guilt.

                Grear’s court-appointed attorney on appeal has filed a motion to withdraw

supported by a brief concluding that the appeal is frivolous and without merit. Counsel’s brief

meets the requirements of Anders v. California by presenting a professional evaluation of the

record and demonstrating that there are no arguable grounds to be advanced. See 386 U.S. 738,

744-45 (1967); Garner v. State, 300 S.W.3d 763, 766 (Tex. Crim. App. 2009); see also Penson

v. Ohio, 488 U.S. 75, 81-82 (1988) (explaining that Anders briefs serve purpose of “assisting the

court in determining both that counsel in fact conducted the required detailed review of the case

and that the appeal is . . . frivolous”). Grear’s counsel has represented to the Court that he

provided copies of the motion and brief to Grear; advised Grear of his right to examine the

appellate record, file a pro se brief, and pursue discretionary review following the resolution of

the appeal in this Court; and provided Grear with a form motion for pro se access to the appellate

record along with the mailing address of this Court. See Kelly v. State, 436 S.W.3d 313, 319-20

(Tex. Crim. App. 2014). Although Grear was given a copy of the appellate record, he has not

filed a pro se brief, and the time permitted to file a brief has expired.

                After independently reviewing the record, we have found nothing in the record

that might arguably support the appeal. See Anders, 386 U.S. at 744; Garner, 300 S.W.3d at 766.

Accordingly, we agree with counsel that the appeal is frivolous and without merit and grant

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counsel’s motion to withdraw. However, although the issue was not raised by Grear’s counsel,

we observe that the district court’s judgment contains a clerical error. The district court’s

judgment states that Grear’s “Plea to Motion to Adjudicate” was “TRUE,” but the record

from the adjudication hearing shows that Grear entered plea of “not true” to all of the

State’s allegations. This Court has the authority to modify incorrect judgments when it has the

information necessary 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). In fact, “[a]ppellate courts have the power to reform whatever the

trial court could have corrected by a judgment nunc pro tunc where the evidence necessary to

correct the judgment appears in the record.” Morris v. State, 496 S.W.3d 833, 836 (Tex. App.—

Houston [1st Dist.] 2016, pet. ref’d) (quoting Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.—

Dallas 1991, pet. ref’d)). Accordingly, we modify the judgment to reflect that Grear entered a

plea of “NOT TRUE.”

              As modified, we affirm the district court’s judgment adjudicating Grear’s guilt.



                                            __________________________________________
                                            Thomas J. Baker, Justice

Before Chief Justice Rose, Justices Goodwin and Baker

Modified and, as Modified, Affirmed

Filed: October 29, 2019

Do Not Publish




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