Background
Richard Lee Weber pleaded guilty in separate cases to attempted aggravated sexual assault of a child, a second-degree felony, and indecency with a child by exposure, a third-degree felony. The trial court deferred adjudication and placed him on community supervision for seven years for both offenses.
After the State moved to revoke community supervision, Weber pleaded true to the State’s allegations. The trial court adjudicated him guilty and imposed concurrent prison sentences of twenty years for attempted aggravated sexual assault of a child and ten years for indecency with a child. His appointed appellate counsel filed Anders briefs and motions to withdraw, stating that the records presented no arguable grounds for appeal, and Weber did not file pro se responses.
The Court’s Holding
After independently reviewing the records and counsel’s briefs in both causes, the court found nothing that would arguably support an appeal. It therefore affirmed the judgment for indecency with a child and affirmed the judgment for attempted aggravated sexual assault of a child as modified.
The attempted-aggravated-sexual-assault judgment identified Texas Penal Code § 22.021(a)(2)(B) as the statute for the offense, although Weber was convicted of an attempted offense under § 15.01(a), rather than the completed underlying offense. Treating the discrepancy as nonreversible error that could be corrected in an Anders appeal, the court replaced the statutory reference with § 15.01(a). It also granted appointed counsel’s motions to withdraw.
Key Takeaways
- An appellate court reviewing an Anders brief must independently examine the entire proceeding to determine whether the appeal is wholly frivolous.
- The court found no issue in either record that would arguably support an appeal.
- An appellate court may modify a judgment to correct nonreversible error in an Anders case and affirm the judgment as modified.
Why It Matters
The decision illustrates that an Anders review does not prevent an appellate court from correcting an inaccurate statutory reference in a criminal judgment, even when the error supplies no arguable basis for reversal.
It also underscores that a conviction for an attempted offense rests on Texas Penal Code § 15.01, rather than solely on the provision defining the completed offense.