Appellate courts have the authority to reform judgments and affirm as modified in cases involving non-reversible error.
In an Anders appeal, the court reviews the record for reversible error and finds none, but identifies a clerical error in the judgment regarding the victim's age. The court addresses whether it must abate the case to allow the trial court to correct the judgment or if it may reform the judgment itself. The court holds that appellate courts have the authority to reform judgments and affirm as modified in cases involving non-reversible error, overruling prior authority that required abatement. The court modifies the judgment to reflect the victim's age as twelve to thirteen years old, consistent with the evidence and statutory effective dates, and grants counsel's motion to withdraw.
At page 294 Appellate authority to reform judgments in Anders cases72 citing casesTex. App.—Waco 2014, pet. struck
- Monty Durell Bryant v. State of Texas, No. 06-22-00148-CR (Tex. App.—Texarkana June 16, 2023).unpublished(Tex. App.—Waco 2014, no pet.)
- Justin Ryan Myers v. State of Texas, No. 06-21-00104-CR (Tex. App.—Texarkana May 11, 2022).unpublished(Tex. App.—Waco 2014, pet. struck)
- Fantha Dale Johnson v. State of Texas, No. 06-21-00044-CR (Tex. App.—Texarkana Apr. 21, 2022).unpublished(Tex. App.—Waco 2014, pet. struck)
- Benjamin Ramer v. State of Texas, No. 06-21-00118-CR (Tex. App.—Texarkana Apr. 5, 2022).unpublished(Tex. App.—Waco 2014, pet. struck)
- Ryan Robert Sessions v. State of Texas, No. 13-21-00216-CR (Tex. App.—Corpus Christi–Edinburg Feb. 24, 2022).unpublished(Tex. App.—Waco 2014, pet. struck)
- David Joel Dean v. State of Texas, No. 06-21-00020-CR (Tex. App.—Texarkana Dec. 7, 2021).unpublished(Tex. App.—Waco 2014, pet. struck)
- in the Interest of C.T., a Child, No. 06-21-00050-CV (Tex. App.—Texarkana Nov. 17, 2021).published(Tex. App.—Waco 2014, pet. struck)
- Richard Lee Percivill, Jr. v. State of Texas, No. 06-19-00185-CR (Tex. App.—Texarkana July 23, 2021).unpublishedEven though this is not reversible error, appellate courts “have the authority to reform judgments and affirm as modified in cases where there is non reversible error.” Ferguson v. State, 435 S.W.3d 291, 293 (Tex. App.—Waco 2014, pet. stru…
- Jeremy Shane Lowe v. State of Texas, No. 06-20-00108-CR (Tex. App.—Texarkana July 15, 2021).unpublished(Tex. App.—Waco 2014, pet. struck)
- Vonderrick Allen v. State, No. 06-20-00074-CR (Tex. App.—Texarkana Jan. 7, 2021).unpublishedIn Anders cases, appellate courts “have the authority to reform judgments and affirm as modified in cases where there is non reversible error.” Ferguson v. State, 435 S.W.3d 291, 293 (Tex. App.—Waco 2014, pet. struck) (comprehensively disc…
Show 62 more citing cases
- Vonderrick Allen v. State, No. 06-20-00072-CR (Tex. App.—Texarkana Jan. 7, 2021).unpublished(Tex. App.—Waco 2014, pet. struck)
- Ricky Lee Wyly, II v. State, No. 06-20-00007-CR (Tex. App.—Texarkana Oct. 29, 2020).unpublished(Tex. App.—Waco 2014, pet. struck)
- Jonathan Shannon Howard v. State, No. 06-20-00046-CR (Tex. App.—Texarkana Oct. 8, 2020).unpublished(Tex. App.—Waco 2014, pet. struck)
- Dominique Shaquille Harvey v. State, No. 06-19-00123-CR (Tex. App.—Texarkana Sept. 18, 2020).unpublished(Tex. App.—Waco 2014, pet. struck)
- Gabriel Logan Orocio v. State, No. 06-19-00235-CR (Tex. App.—Texarkana Aug. 12, 2020).unpublished(Tex. App.—Waco 2014, pet. struck)
- Gabriel Logan Orocio v. State, No. 06-19-00236-CR (Tex. App.—Texarkana Aug. 12, 2020).unpublished(Tex. App.—Waco 2014, pet. struck)
- Mark Dewayne Mitchell v. State, No. 06-19-00229-CR (Tex. App.—Texarkana Apr. 30, 2020).unpublished(Tex. App.—Waco 2014, pet. struck)
- Jeffery Wade Gordon v. State, No. 06-19-00224-CR (Tex. App.—Texarkana Apr. 21, 2020).unpublished(Tex. App.—Waco 2014, pet. struck)
- Kyle Andrew Butler v. State, No. 06-19-00209-CR (Tex. App.—Texarkana Apr. 14, 2020).unpublished(Tex. App.—Waco 2014, pet. struck)
- Richard Lee Percivill, Jr. v. State, No. 06-19-00185-CR (Tex. App.—Texarkana Apr. 9, 2020).unpublishedEven though this is not reversible error, appellate courts “have the authority to reform judgments and affirm as modified in cases where there is non reversible error.” Ferguson v. State, 435 S.W.3d 291, 293 (Tex. App.—Waco 2014, pet. stru…
- John Elie LeBlanc v. State, No. 06-19-00152-CR (Tex. App.—Texarkana Mar. 26, 2020).unpublished(Tex. App.—Waco 2014, pet. struck)
- Michael Dale Thomas, Jr. v. State, No. 06-19-00238-CR (Tex. App.—Texarkana Mar. 26, 2020).unpublished(Tex. App.—Waco 2014, pet. struck)
- Bobby Carl Lennox v. State, No. 06-19-00164-CR (Tex. App.—Texarkana Feb. 20, 2020).published(Tex. App.—Waco 2014, pet. struck)
- Edgar Lee Starr v. State, No. 06-19-00140-CR (Tex. App.—Texarkana Feb. 5, 2020).unpublished(Tex. App.—Waco 2014, pet. struck)
- Michelle Lee Hayes v. State, No. 06-19-00138-CR (Tex. App.—Texarkana Jan. 15, 2020).unpublished(Tex. App.—Waco 2014, pet. struck)
- D'Andre Jamarious Hayward v. State, No. 07-19-00345-CR (Tex. App.—Amarillo Dec. 31, 2019).unpublished(Tex. App.—Waco 2014, pet. dism’d)
- Charles Clyde Ingram v. State, No. 06-19-00072-CR (Tex. App.—Texarkana Dec. 12, 2019).unpublished(Tex. App.—Waco 2014, pet. struck)
- Michael Ray Howard v. State, No. 06-19-00166-CR (Tex. App.—Texarkana Nov. 27, 2019).unpublished(Tex. App.—Waco 2014, pet. struck)
- Curtis Brown v. State, No. 06-17-00168-CR (Tex. App.—Texarkana Feb. 27, 2018).unpublished
- Larry Darnell Tave v. State, No. 06-18-00186-CR (Tex. App.—Texarkana Apr. 8, 2019).unpublished
- David Turney v. State, No. 06-19-00040-CR (Tex. App.—Texarkana Oct. 11, 2019).unpublished
- Thomas Dean Richardson, Jr. v. State, No. 06-15-00025-CR (Tex. App.—Texarkana June 17, 2015).unpublished
- Denise Gail Dooley v. State, No. 06-14-00240-CR (Tex. App.—Texarkana July 20, 2015).unpublished
- Marshall Deshun Parker v. State, No. 06-14-00237-CR (Tex. App.—Texarkana June 4, 2015).unpublished
- Marshall Deshun Parker v. State, No. 06-14-00238-CR (Tex. App.—Texarkana June 4, 2015).unpublished
- Tyrone Denard Anderson v. State, No. 06-14-00074-CR (Tex. App.—Texarkana May 28, 2015).unpublished
- Thomas Lance Beloney v. State, No. 06-15-00007-CR (Tex. App.—Texarkana May 22, 2015).unpublished
- Phyllis Gwen Pruitt v. State, No. 06-14-00217-CR (Tex. App.—Texarkana May 5, 2015).unpublished
- Phyllis Gwen Pruitt v. State, No. 06-14-00216-CR (Tex. App.—Texarkana May 5, 2015).unpublished
- Rocky Lee Ellinger v. State, No. 06-14-00205-CR (Tex. App.—Texarkana Apr. 21, 2015).unpublished
- Brian Anthony Preciado v. State, No. 06-16-00081-CR (Tex. App.—Texarkana July 25, 2016).unpublished
- Brian Eugene Woodard v. State, No. 06-14-00221-CR (Tex. App.—Texarkana Aug. 11, 2015).unpublished
- Milton Edward Griggs v. State, No. 06-15-00047-CR (Tex. App.—Texarkana Aug. 31, 2015).unpublished
- Christopher Wayne Wilder v. State, No. 06-15-00091-CR (Tex. App.—Texarkana Sept. 22, 2015).unpublished
- Anderson, Tyrone Denard, No. PD-0784-15 (Tex. Crim. App. Aug. 27, 2015).unpublished
- Duane Dexter Taylor v. State, No. 06-17-00019-CR (Tex. App.—Texarkana July 21, 2017).unpublished
- Duane Dexter Taylor v. State, No. 06-17-00018-CR (Tex. App.—Texarkana July 21, 2017).unpublished
- Alexis Elaina Walker v. State, 557 S.W.3d 678 (Tex. App.—Texarkana 2018).published
- Jessie Dwight Baker v. State, No. 06-17-00194-CR (Tex. App.—Texarkana Mar. 23, 2018).unpublished
- Robert Christopher Young v. State, No. 06-17-00195-CR (Tex. App.—Texarkana Apr. 2, 2018).unpublished
- Joyce Cobbins v. State, No. 06-18-00039-CR (Tex. App.—Texarkana July 24, 2018).unpublished
- Terrell Dewayne Dopson v. State, No. 06-18-00028-CR (Tex. App.—Texarkana Aug. 8, 2018).unpublished
- Terrell Dewayne Dopson v. State, No. 06-18-00027-CR (Tex. App.—Texarkana Aug. 8, 2018).unpublished
- Johnny Lester Anderson v. State, No. 06-18-00106-CR (Tex. App.—Texarkana Oct. 4, 2018).unpublished
- Fellisia Meshaun Ford v. State, No. 06-18-00079-CR (Tex. App.—Texarkana Dec. 20, 2018).unpublished
- Ray Charles Hawkins v. State, No. 06-18-00123-CR (Tex. App.—Texarkana Jan. 9, 2019).unpublished
- Reggie Mason Smith v. State, No. 06-18-00116-CR (Tex. App.—Texarkana Feb. 7, 2019).unpublished
- David Nickolas Armstrong v. State, No. 06-18-00148-CR (Tex. App.—Texarkana Mar. 13, 2019).unpublished
- Michael Brandon Garrett v. State, No. 06-18-00108-CR (Tex. App.—Texarkana Mar. 21, 2019).unpublished
- Quintlin Renard Jimerson v. State, No. 06-18-00201-CR (Tex. App.—Texarkana May 22, 2019).unpublished
- Michael Henry Cossman v. State, No. 06-19-00027-CR (Tex. App.—Texarkana June 5, 2019).unpublished
- Marissa Ann Flowers v. State, No. 06-19-00043-CR (Tex. App.—Texarkana July 11, 2019).unpublished
- Lyntorance Jamal Rawls v. State, No. 06-19-00035-CR (Tex. App.—Texarkana July 23, 2019).unpublished
- Anthony Michael Martino v. State, No. 06-19-00077-CR (Tex. App.—Texarkana Aug. 16, 2019).unpublished
- Allan Michael McCarty v. State, No. 06-19-00041-CR (Tex. App.—Texarkana Aug. 22, 2019).unpublished
- Raymond Doyle Gilbert v. State, No. 06-19-00069-CR (Tex. App.—Texarkana Aug. 30, 2019).unpublished
- Jesse Lucas Wilson v. State, No. 06-19-00076-CR (Tex. App.—Texarkana Aug. 30, 2019).unpublished
- Timothy Darwin Eiland v. State, No. 06-19-00044-CR (Tex. App.—Texarkana Sept. 10, 2019).unpublished
- Amber Jean Long v. State, No. 06-19-00050-CR (Tex. App.—Texarkana Oct. 4, 2019).unpublished
- Sheila Ardry Jones v. State, No. 06-19-00065-CR (Tex. App.—Texarkana Nov. 1, 2019).unpublished
- Skye Lynn Hargett v. State, No. 06-19-00161-CR (Tex. App.—Texarkana Nov. 18, 2019).unpublished
- Devon Ray Davis v. State, No. 06-15-00032-CR (Tex. App.—Texarkana Aug. 4, 2015).unpublished
At page 293 Reviewing records for arguable grounds in appeal36 citing cases“have the authority to reform judgments and affirm as modified in cases where there is non reversible error.”
- Micheal Christopher Lee v. State of Texas, No. 06-25-00161-CR (Tex. App.—Texarkana June 29, 2026).unpublished(Tex. App.—Waco 2014, pet. struck)
- Jacoby Latraille Brown v. State of Texas, No. 06-25-00072-CR (Tex. App.—Texarkana Apr. 22, 2026).unpublished(Tex. App.—Waco 2014, pet. struck)
- Gary Ladale Criston v. State of Texas, No. 06-24-00200-CR (Tex. App.—Texarkana Apr. 22, 2026).unpublished(Tex. App.—Waco 2014, pet. struck)
- Warren Rhone v. State of Texas, No. 06-25-00102-CR (Tex. App.—Texarkana Feb. 19, 2026).unpublished(Tex. App.—Waco 2014, pet. struck)
- Warren Rhone v. State of Texas, No. 06-25-00101-CR (Tex. App.—Texarkana Feb. 19, 2026).unpublished(Tex. App.—Waco 2014, pet. struck)
- Lacarrian Terrel Gordon v. State of Texas, No. 06-24-00123-CR (Tex. App.—Texarkana Feb. 5, 2025).unpublished(Tex. App.—Waco 2014, pet. struck)
- Carley Yvonne Cooper v. State of Texas, No. 06-24-00049-CR (Tex. App.—Texarkana Sept. 17, 2024).unpublished(Tex. App.—Waco 2014, pet. struck)
- Brandon Everett Palmer v. State of Texas, No. 06-23-00174-CR (Tex. App.—Texarkana Aug. 23, 2024).unpublished(Tex. App.—Waco 2014, pet. struck)
- Brandon Everett Palmer v. State of Texas, No. 06-23-00172-CR (Tex. App.—Texarkana Aug. 23, 2024).unpublished(Tex. App.—Waco 2014, pet. struck)
- Lamisa Lashun Allison v. State of Texas, No. 06-23-00153-CR (Tex. App.—Texarkana May 29, 2024).unpublished(Tex. App.—Waco 2014, pet. struck)
Show 26 more citing cases
- Dalton Dale Rogers v. State of Texas, No. 06-23-00054-CR (Tex. App.—Texarkana Nov. 15, 2023).unpublished(Tex. App.—Waco 2014, pet. struck)
- Brian Everett Gumpert v. State of Texas, No. 06-23-00001-CR (Tex. App.—Texarkana Aug. 31, 2023).unpublished(Tex. App.—Waco 2014, pet. struck)
- MacK Curtis Ivory v. State of Texas, No. 06-22-00037-CR (Tex. App.—Texarkana Jan. 6, 2023).unpublished(Tex. App.—Waco 2014, pet. struck)
- Joshua Glenn Bohner v. State of Texas, No. 06-21-00128-CR (Tex. App.—Texarkana Aug. 11, 2022).unpublished(Tex. App.—Waco 2014, pet. struck)
- Daquarious Tre'Ron Meadors v. State of Texas, No. 06-21-00056-CR (Tex. App.—Texarkana Mar. 18, 2022).unpublished(Tex. App.—Waco 2014, pet. struck)
- Johnny Len Kellogg v. State of Texas, No. 06-21-00058-CR (Tex. App.—Texarkana Mar. 2, 2022).unpublished(Tex. App.—Waco 2014, pet. struck)
- Richard Lee Percivill, Jr. v. State of Texas, No. 06-19-00185-CR (Tex. App.—Texarkana July 23, 2021).unpublished(Tex. App.—Waco 2014, pet. struck)
- Alton Stafford v. State of Texas, No. 13-20-00324-CR (Tex. App.—Corpus Christi–Edinburg June 10, 2021).unpublished(Tex. App.—Waco 2014, pet. struck)
- Larry Ramon Lopez v. State, No. 10-18-00332-CR (Tex. App.—Waco Jan. 27, 2021).unpublished(Tex. App.—Waco 2014, pet. struck)
- Vonderrick Allen v. State, No. 06-20-00074-CR (Tex. App.—Texarkana Jan. 7, 2021).unpublished(Tex. App.—Waco 2014, pet. struck)
- Nuru Nathan Tinch, Jr. v. State, No. 06-20-00056-CR (Tex. App.—Texarkana Oct. 20, 2020).unpublished(Tex. App.—Waco 2014, pet. struck)
- Meka Lovell Spencer v. State, No. 06-20-00057-CR (Tex. App.—Texarkana Aug. 17, 2020).unpublished(Tex. App.—Waco 2014, pet. struck)
- David Sharpe v. State, 607 S.W.3d 446 (Tex. App.—Texarkana 2020).published(Tex. App.—Waco 2014, pet. struck)
- Richard Lee Percivill, Jr. v. State, No. 06-19-00185-CR (Tex. App.—Texarkana Apr. 9, 2020).unpublished(Tex. App.—Waco 2014, pet. struck)
- Kevin Odell v. State, No. 04-15-00073-CR (Tex. App.—San Antonio Sept. 2, 2015).unpublished
- Jerry Edmond Broadway v. State, No. 06-17-00192-CR (Tex. App.—Texarkana Feb. 15, 2018).unpublished
- Curtis Brown v. State, No. 06-17-00168-CR (Tex. App.—Texarkana Feb. 27, 2018).unpublished
- Eric Vincent Wright v. State, No. 10-17-00168-CR (Tex. App.—Waco Apr. 4, 2018).unpublished
- Larry Darnell Tave v. State, No. 06-18-00186-CR (Tex. App.—Texarkana Apr. 8, 2019).unpublished
- Cayton Dakotah Quiroz v. State, No. 06-19-00018-CR (Tex. App.—Texarkana June 5, 2019).unpublished
- James Ross Heim III v. State, No. 06-19-00090-CR (Tex. App.—Texarkana Aug. 27, 2019).unpublished
- David Turney v. State, No. 06-19-00040-CR (Tex. App.—Texarkana Oct. 11, 2019).unpublished
- Marcos Justin Martinez v. State, No. 07-18-00229-CR (Tex. App.—Amarillo Nov. 19, 2019).unpublished
- Moses C. Lee v. State, No. 10-18-00334-CR (Tex. App.—Waco Dec. 31, 2019).unpublished
- Tometheus Lee Bryant v. State, No. 10-18-00352-CR (Tex. App.—Waco Jan. 8, 2020).unpublished
- Carlos Dawayne Robinson v. State of Texas, No. 13-20-00043-CR (Tex. App.—Corpus Christi–Edinburg July 15, 2021).unpublished
At page 295 Determining age and statutory applicability of offense21 citing casesreforming judgment in an Anders appeal to correct age of child complainant
- Victor Santana v. State, No. 14-14-00130-CR (Tex. App.—Houston [14th Dist.] Nov. 7, 2014).unpublished
- Curtis James Simond v. State, No. 14-14-00633-CR (Tex. App.—Houston [14th Dist.] July 23, 2015).unpublished
- Nathan Harris Jones v. State, No. 14-15-00025-CR (Tex. App.—Houston [14th Dist.] July 30, 2015).unpublished
- Andre Nigel Bennett v. State, No. 14-14-00474-CR (Tex. App.—Houston [14th Dist.] Apr. 9, 2015).unpublished
- Trumaine Marke Williams v. State, No. 14-15-00262-CR (Tex. Dec. 15, 2015).unpublished
- Jerome Fisher Pleasant v. State, No. 14-15-00971-CR (Tex. App.—Houston [14th Dist.] Nov. 17, 2016).unpublished
- Sheldon Tobias Brown v. State, No. 14-17-00584-CR (Tex. App.—Houston [14th Dist.] June 28, 2018).unpublished
- Anthony Lee Goodin v. State, No. 11-17-00073-CR (Tex. App.—Eastland Mar. 29, 2019).unpublished
- Rafe A. Goodman v. State, No. 10-18-00326-CR (Tex. App.—Waco June 26, 2019).unpublished
- Charles Hardaway v. State, No. 14-18-00284-CR (Tex. App.—Houston [14th Dist.] July 11, 2019).unpublished
Show 11 more citing cases
- Ja Corrie Stefon Rogers v. State, No. 14-18-00548-CR (Tex. App.—Houston [14th Dist.] July 18, 2019).unpublished
- Mark Dwight Mason v. State, No. 14-18-00505-CR (Tex. App.—Houston [14th Dist.] July 25, 2019).unpublished
- Brandy Nichole Crowe v. State, 595 S.W.3d 317 (Tex. App.—Dallas 2020).published
- Robert Chadwin Miller v. State, No. 14-19-00026-CR (Tex. App.—Houston [14th Dist.] Mar. 12, 2020).unpublished
- Charleston Roshun Cobbin v. State of Texas, No. 14-18-00749-CR (Tex. App.—Houston [14th Dist.] June 10, 2021).unpublished
- Jerry Wayne Greer v. State of Texas, No. 14-22-00548-CR (Tex. App.—Houston [14th Dist.] July 20, 2023).unpublished
- Dustin Shea Kokenes v. State of Texas, No. 14-22-00593-CR (Tex. App.—Houston [14th Dist.] Aug. 31, 2023).unpublished
- Dennis Jackson v. State of Texas, No. 14-22-00158-CR (Tex. App.—Houston [14th Dist.] Oct. 31, 2023).unpublished
- Deandre Watson v. State of Texas, No. 14-22-00725-CR (Tex. App.—Houston [14th Dist.] Oct. 31, 2023).unpublished
- Mario Harrideo v. State of Texas, No. 14-23-00478-CR (Tex. App.—Houston [14th Dist.] Aug. 27, 2024).unpublished
- Darryl Glenn Phillips v. State of Texas, No. 14-24-00209-CR (Tex. App.—Houston [14th Dist.] Oct. 22, 2024).unpublished
Other citing cases
- McElwain v. State, 435 S.W.3d 298 (Tex. App.—Waco 2014).published
v.
The STATE of Texas
Lead Opinion
OPINION
AL SCOGGINS, Justice.Appellant, Darrell Ferguson, was charged by indictment with continuous sexual abuse of a child, a first-degree felony. See Tex. Penal Code Ann. § 21.02(b), (h) (West Supp.2013). Appellant pleaded “not guilty” to the charge, and the case proceeded to trial. At the conclusion of the evidence, the jury found appellant guilty of the charged offense, and the trial court sentenced appellant to life imprisonment in the Institutional Division of the Texas Department of Criminal Justice. Appellant appeals from this judgment, and we affirm as modified.
I. Anders Brief
Pursuant to Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 1400, 18 L.Ed.2d 493 (1967), appellant’s court-appointed appellate counsel filed a brief with this Court, stating that her review of the record yielded no grounds of error upon which an appeal can be predicated. Accompanying counsel’s brief is a motion to withdraw in this appellate cause number. Counsel’s brief presents a professional[*293] evaluation of the record demonstrating why there are no arguable grounds to be advanced in this appeal. See In re Schulman, 252 S.W.3d 403, 407 n. 9 (Tex.Crim.App.2008) (“In Texas, an Anders brief need 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), appellant’s counsel has carefully discussed why, under controlling authority, there is no reversible error 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 in this appeal; (2) served a copy of the brief and counsel’s motion to withdraw on appellant; and (3) informed appellant of his right to review the record and to file a pro se response in this appeal.[1] See Anders, 386 U.S. at 744, 87 S.Ct. at 1400; Stafford, 813 S.W.2d at 510 n. 3; see also In re Schulman, 252 S.W.3d at 409 n. 23. On December 19, 2013, appellant filed a letter in response to counsel’s Anders brief and motion to withdraw.
II. Independent Review
Upon receiving an Anders brief, we 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, 109 S.Ct. 346, 349-50, 102 L.Ed.2d 300 (1988). After reviewing the entire record, counsel’s brief, and appellant’s response, we have found nothing that would arguably support an appeal in this matter. See Bledsoe v. State, 178 S.W.3d 824, 827-28 (Tex.Crim.App.2005) (“Due to the nature of Anders briefs, by 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. However, there is some error in the judgment regarding the child victim’s age at the time of the offense.
Despite concluding that there is no reversible error in the judgment, counsel requests that we modify the trial court’s judgment, which states that the continuous sexual abuse transpired from when the child victim was five years old and until she was twelve years old, to correspond with the evidence and the allegations in the indictment that allege that the continuous sexual abuse transpired “on or about September 1, 2007, though June 30, 2009” or, in other words, when the child victim was twelve to thirteen years old. We recognize that this Court has previously held that reformation of a judgment constitutes relief and that if a defendant is entitled to any relief from an appellate court, he is not prosecuting a frivolous appeal. Evans v. State, 933 S.W.2d 334, 334 (Tex.App.Waco 1996, no pet.). However, since that holding, numerous Texas courts have held to the contrary: that appellate courts have the authority to reform judgments and affirm as modified in cases where there is non reversible error. See Bray v. State, [*294] 179 S.W.3d 725, 729-30 (Tex.App.-Fort Worth 2005, no pet.) (reforming the trial court’s judgment in an Anders case because abatement “would require the trial court to do a useless task — appoint counsel to raise an issue of law that we have previously ruled on ...” and affirming the judgment as modified); Getts v. State, 155 S.W.3d 153, 154 (Tex.Crim.App.2005) (affirming a court of appeals’ reformation of the trial court’s judgment in an Anders case); see also R.J.O. v. Tex. Dep’t of Family & Protective Sens., No. 03-13-00478-CV, 2013 WL 6060778, at **1-1, 2013 Tex.App. LEXIS 13874, at **4-5 & n. 3 (Tex.App.-Austin Nov. 13, 2013, no pet.) (mem. op.) (reforming the trial court’s final decree to remove a statutory ground for termination and affirming the judgment as modified in an Anders ease); Sheddan v. State, No. 12-12-00391-CR, 2013 WL 3377416, at **1-1, 2013 Tex.App. LEXIS 8197, at **3-5 (Tex.App.-Tyler July 3, 2013, no pet.) (mem. op., not designated for publication) (reforming the trial court’s judgment to reflect that appellant pleaded “true” to an enhancement paragraph and the trial court found the enhancement paragraph to be “true” and affirming the judgment as modified in an Anders case); Thomas v. State, No. 13-12-00283-CR, 2012 WL 6680143, at **1-2, 2012 Tex.App. LEXIS 10550, at **4-5 (Tex.App.-Corpus Christi Dec. 20, 2012, no pet.) (mem. op., not designated for publication) (deleting a $500 fine from appellant’s administrative fees and affirming the judgment as modified in an Anders case); McBreen v. State, Nos. 05-03-01424-CR, 05-03-01425-CR, 2005 WL 3032496, at **4, 2005 Tex.App. LEXIS 9524, at **10-11 (Tex.App.-Dallas Nov. 14, 2005, no pet.) (mem. op., not designated for publication) (modifying the trial court’s written judgment to reflect the sentence orally pronounced and affirming the judgment as modified in an Anders case); Burnett v. State, No. 06-00-00147-CR, 2001 WL 82520, at **1-2, 2001 Tex. App. LEXIS 714, at **4-5 (Tex.App.-Texarkana Feb. 1, 2001, no pet.) (mem. op., not designated for publication) (reforming the trial court’s judgment to delete a condition of parole and affirming the judgment as modified in an Anders case); Adams v. State, No. 14-97-00553-CR, 1999 WL 144793, at **1-2, 1999 Tex.App. LEXIS 1872, at **4-5 (Tex.App.-Houston [14th Dist.] Mar. 18, 1999, no pet.) (mem. op., not designated for publication) (reforming the judgment to reflect that appellant was convicted of a third-degree felony, rather than a second-degree felony, noting that this error “does not entitle appellant to reversal of his conviction,” and affirming the judgment as modified in an Anders case).
We have not found any cases following the rationale articulated in Evans. Moreover, the Texas Court of Criminal Appeals has stated that “the law does not compel us to require courts to perform useless tasks.” Homan v. Hughes, 708 S.W.2d 449, 454 (Tex.Crim.App.1986). In the instant case, the requested modification of the judgment does not result in a reversal of appellant’s conviction. McCoy v. Court of Appeals of Wisconsin, Dist. 1, 486 U.S. 429, 444,108 S.Ct. 1895,1905,100 L.Ed.2d 440 (1988) (“In searching for the strongest arguments available, the attorney must be zealous and must resolve all doubts and ambiguous legal questions in favor of his or her client. Once that obligation is fulfilled, however, and counsel has determined that the appeal is frivolous — and therefore that the client’s interests would not be sened by proceeding with the appeal — the advocate does not violate his or her duty to the client by supporting a motion to withdraw with a brief that complies with both Anders and the Wisconsin Rule.” (emphasis added)). Accordingly, we do not believe that abate[*295]ment is necessary in this case because it would amount to ordering the trial court to do a useless task. See Homan, 708 S.W.2d at 454; see also Bray, 179 S.W.3d at 729-30. Therefore, to the extent that Evans requires abatement in circumstances such as this, we overrule the case. See 933 S.W.2d at 344.
In any event, the child victim testified that she born on August 29, 1995, and that the sexual abuse occurred from when she was five years old until she was twelve years old. However, other witnesses testified that the child victim told them that the sexual abuse continued until she was thirteen. The child victim did not specify the exact date that the alleged sexual abuse concluded. See Ozuna v. State, 199 S.W.3d 601, 606 (Tex.App.-Corpus Christi 2006, no pet.) (“The victim’s description of what happened to [her] need not be precise, and [she] is not expected to express [herself] at the same level of sophistication as an adult.”) (citing Villalon v. State, 791 S.W.2d 130, 134 (Tex.Crim.App.1990) (en banc) (noting that courts give wide latitude to the testimony given by child victims of sexual abuse)).
It is undisputed that section 21.02 of the Texas Penal Code, the operative statutory provision in this case, first became effective on September 1, 2007. See Act of May 18, 2007, 80th Leg., R.S., ch. 593, §§ 1.17, 4.01(a), 2007 Tex. Gen. Laws 1120, 1127, 1148; see also Martin v. State, 335 S.W.3d 867, 873 (Tex.App.-Austin 2011, pet. ref'd). “An offense is committed before the effective date of the statute if any element of the offense occurs before that date.” Martin, 335 S.W.3d at 873; see, e.g., McGough v. State, No. 11-10-00073-CR, 2012 WL 690229, at **7-8, 2012 Tex. App. LEXIS 1669, at **20-21 (TexApp.-Eastland Mar. 1, 2012, pet. ref'd) (mem. op., not designated for publication). Thus, the State could not rely on any “act of sexual abuse” that occurred before September 1, 2007, to prove the offense of continuous sexual abuse of a young child. See Martin, 335 S.W.3d at 873; see also McGough, 2012 WL 690229, at **7-8, 2012 Tex.App. LEXIS 1669, at **20-21. Instead, to obtain a conviction in this case, the State was required to prove that continuous sexual abuse occurred for a period of thirty or more days during the time period beginning on September 1, 2007, and ending on June 30, 2009. See Klein v. State, 273 S.W.3d 297, 303 n. 5 (Tex.Crim.App.2008) (noting that the State is not required to prove the specific date the offense occurred when an “on or about” date is alleged within the indictment); Wright v. State, 28 S.W.3d 526, 532 (Tex. Crim.App.2000). Therefore, because the State could not rely on any “act of sexual abuse” that transpired before September 1, 2007, when the child victim was twelve years old, and based on our review of the record, we will modify the trial court’s judgment to reflect that the age of the victim at the time of the offense was twelve to thirteen years old — the ages supported by the testimony adduced at trial. See Tex.R.App. P. 43.2(b); Pfeiffer v. State, 363 S.W.3d 594, 599 (Tex.Crim.App.2012) (observing that “when a defendant appeals his conviction, the courts of appeals have the jurisdiction to address any error in that case”); Martin, 335 S.W.3d at 873; French v. State, 830 S.W.2d 607, 609 (Tex. Crim.App.1992) (stating that an appellate court has authority to reform a judgment to include an affirmative finding to make the record speak the truth when the matter has been called to its attention by any source); see also Romero v. State, No. 13-13-00270-CR, 2013 WL 6729959, at *2, 2013 Tex.App. LEXIS 15198, at *5 (Tex. App.-Corpus Christi Dec. 19, 2013, no pet. h.) (mem. op., not designated for publication) (“Appellate courts may modify the trial court’s judgment to make the record[*296] speak the truth when we have the necessary information to do so, even in case where appellant’s counsel files an Anders brief.”); McGough, 2012 WL 690229, at **7-8, 2012 Tex.App. LEXIS 1669, at **20-21. We affirm as modified.
III. Motion to Withdraw
In accordance with Anders, appellant’s attorney has asked this Court for permission to withdraw as counsel for appellant in this matter. See Anders, 386 U.S. at 744, 87 S.Ct. at 1400; 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.) (“If an attorney believes the appeal is frivolous, 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. Within five days of the date of this Court’s opinion, counsel is ordered to send a copy of this opinion and this Court’s judgment to appellant and to advise him of his right to file a petition for discretionary review.[2] 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 670, 673 (Tex.Crim.App.2006).
Chief Justice GRAY concurring with Justice DAVIS joining.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) (quoting Wilson v. State, 955 S.W.2d 693, 696-97 (Tex.App.-Waco 1997, no pet.)).
No substitute counsel will be appointed. Should appellant wish to seek further review of this case by the Texas Court of Criminal Appeals, he must either retain an attorney to a file petition for discretionary review or must file a pro se petition for discretionary review. Any petition for discretionary review must be filed within thirty days from the date of this opinion or the last timely motion for rehearing or timely motion for en banc reconsideration was overruled by this Court. See Tex. R.App. P. 68.2. Any petition and all copies of the petition for discretionary review must be filed with the Clerk of the Court of Criminal Appeals. See id. at R. 68.3. Any petition for discretionary review should comply with the requirements of rule 68.4 of the Texas Rules of Appellate Procedure. See id. at R. 68.4; see also In re Schulman, 252 S.W.3d at 409 n. 22.
Concurrence
concurring.
Today, we return to a well-worn path; the minimum procedure required for compliance with the constitutional mandate of the assistance of counsel, sometimes referred to as an Anders procedure. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1976). I have long contended that the precedent of this Court required more procedure than was necessary. Beckett v. State, 166 S.W.3d 752 (Tex.App.-Waco 2005, order) (Gray, C.J., concurring); Fewins v. State, 166 S.W.3d 751 (Tex.App.-Waco 2005, order) (Gray, C.J., concurring); Perryman v. State, 159 S.W.3d 778 (Tex.App.-Waco 2005, order) (Gray, C.J., concurring); Martinez v. State, 137 S.W.3d 832, 833-834 (Tex.App.-Waco 2004, order) (Gray, C.J., concurring); Martinez v. State, 135 S.W.3d 233 (Tex.App.-Waco 2004) (C.J. Gray dissent to withdrawn order); In the Interest of E.L.Y., 69 S.W.3d 838, 843 (Tex.App.Waco 2002, order) (Gray, J., dissenting); Guerrero v. State, 64 S.W.3d 436, 444 (Tex. App.-Waco 2001, order) (Gray, J., dissenting). See also Gamer v. State, No. 10-05-00218-CR, 2007 WL 1558742, at *7-8, 2007 Tex.App. LEXIS 4246, *17-20 (Tex.App.Waco May 30, 2007, pet. ref'd) (not designated for publication) (Gray, C.J., dissenting); Villanueva v. State, 209 S.W.3d 239, 249-252 (Tex.App.-Waco 2006, no pet.) (Gray, C.J., concurring). We now, for the first time, step back from the most stringent of our own cases interpreting those requirements. Evans v. State, 933 S.W.2d 334 (Tex.App.-Waco 1996, order).
[*297] In Evans we held that if a defendant is entitled to have the judgment reformed in any manner, he is entitled to some “relief’ from this Court, and such relief is sufficient to establish that an arguable point may be raised on appeal. Id. at 335-B36. As evidenced by the Court’s discussion of Evans, a number of courts in this State have either expressly or by implication decided Evans overstates the situations in which an appellate court must abate an appeal for the appointment of new counsel. Most of the cases cited deal with a modification of the judgment and an affirmance as modified. In at least one of the cases cited, the modification was to remove an assessment of attorney’s fees for a court appointed attorney when there is no evidence of a criminal defendant’s ability to pay at the time the judgment is rendered or signed, even though that issue was not identified by appointed counsel that had filed a motion to withdraw and an Anders brief. In that kind of case, the judgment is clearly more favorable to the defendant since the judgment is modified to remove the assessment of attorney’s fees against the defendant. However, in that fact pattern, this Court has previously, consistent with Evans, required that the proceeding be abated and new counsel appointed. Tolbert v. State, No. 10-12-00223-CR, 2013 Tex.App. LEXIS 500 (Tex.App.-Waeo Jan. 17, 2013, order) (not designated for publication); Pivonka v. State, No. 10-12-00176-CR, 2013 Tex.App. LEXIS 496 (Tex.App.-Waco Jan. 17, 2013, order) (not designated for publication); Steele v. State, No. 10-10-00424-CR, 2011 Tex.App. LEXIS 5979 (Tex.App.-Waco July 27, 2011, order) (not designated for publication); Parker v. State, No. 10-10-00381-CR, 2011 Tex.App. LEXIS 5978 (Tex.App.-Waco July 27, 2011, order) (not designated for publication). Today, by an abatement order, a majority of the Court adheres to that precedent. McElwain v. State, No. 10-13-00291-CR, 435 S.W.3d 298, 2014 WL 895198, 2014 Tex.App. LEXIS - (Tex.App.-Waco March 6, 2014, order) (publish).
That is a fact pattern upon which there is clearly a split of authority among the courts of appeals which should possibly be resolved by the Court of Criminal Appeals. But it is not an issue that is easily framed and presented to the Court of Criminal Appeals because, by the time the appeal has been abated and new counsel appointed and the case then reviewed on its merits, the issue is moot. See id. (abatement order requiring the appointment of new counsel to brief the attorney’s fees issue on its merits). Likewise, in those appeals in courts that modify the judgment to eliminate the assessment of cost, the State has frequently conceded error and the judgment is modified to the defendant’s advantage and therefore there is no party that wants to appeal that issue, and there is no other issue to appeal. That aspect of this appeal, that it is not easily framed for review, may be the same.
This brings me to where the modification of the judgment in this appeal in which a motion to withdraw and an Anders brief were filed is different from most cases in which a modification of the judgment in an Anders appeal has occurred. In this appeal, the attorney actually briefed the issue and suggested the modification of the judgment was necessary for the judgment to properly reflect the crime for which the defendant was convicted. Based on this, I do not belief this is a true Anders appeal. How could it be? The attorney identified a defect in the judgment that is recognized by appellate counsel and the court as erroneous and the judgment is being modified to correct the error.
Under this fact pattern, I would treat the brief for what it is, a brief on the[*298] merits, and agree the modification is necessary to correct the judgment. Thus, I concur in the Court’s judgment to affirm the trial court’s judgment as modified.
But, nevertheless, there is the divergence of authority, referenced in both the Court’s opinion and this concurring opinion regarding the extent to which, if any, a reviewing court can otherwise modify a trial court’s judgment in an Anders appeal.[1]
Whether we stay on the path this Court set out in Evans and continuing through today in McElwain or whether it should have a slight course correction is a question for this Court to decide subject to review and correction by the Court of Criminal Appeals. But whether there is another path; an entirely different path, which is more direct and less costly lies with the Court of Criminal Appeals.[2]
With these comments, I concur in the Court’s judgment.
Justice DAVIS joins this concurring opinion.I refer to these as Anders appeals only because that is the style case in this area of the law. The holding in Anders has been so undermined in subsequent decisions that at least one Supreme Court justice has said that it has been effectively overruled. Smith v. Robbins, 528 U.S. 259, 289, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000) (Stevens, J., dissenting). And if I were writing on a blank slate, I would be inclined to take a hard look at California’s procedure, which has passed U.S. Supreme Court review, in which attorneys may file what is called a Wende brief. See id. at 276, 120 S.Ct. 746; People v. Wende, 25 Cal.3d 436, 158 Cal.Rptr. 839, 600 P.2d 1071, 1074-1075, (1979). It seems to overcome much of the potential delay and cost which occurs when the reviewing court identifies an issue and remands the proceeding for full briefing of the identified issue. See Smith, 528 U.S. at 265-266, 120 S.Ct. 746.
It is conceivable that the legislature could also become involved in developing a replacement procedure for Anders appeals.