Thomas Edward Wildman v. the State of Texas
13-20-00335-CR
| Tex. App. | Jul 15, 2021Background:
- Appellant Thomas Edward Wildman had his community supervision revoked and was adjudicated guilty of three counts of online solicitation of a minor under 14 (second-degree felonies) and sentenced to 15 years imprisonment.
- Court-appointed appellate counsel filed an Anders brief stating no arguable grounds for appeal and moved to withdraw, complying with Texas Anders procedures and notifying Wildman of his rights to file a pro se response and seek further review.
- Wildman was given access to the appellate record, was granted extra time to file a pro se response, but filed none.
- The court conducted an independent review of the entire record (per Penson/Anders) and found no reversible error; counsel’s motion to withdraw was granted.
- The court identified a clerical error in the judgment: counts 1 and 3 were incorrectly listed under Tex. Penal Code § 33.021(f) instead of § 33.021(b)(1), and the court modified the judgment to correct the statutory subsection.
- The judgment was affirmed as modified; counsel was ordered to provide Wildman a copy of the opinion and notice about petitioning for discretionary review; no substitute counsel was appointed.
Issues:
| Issue | Wildman’s Argument | State’s Argument | Held |
|---|---|---|---|
| Whether counsel may withdraw under Anders after filing an Anders brief | No arguable grounds for appeal (counsel) | Support withdrawal where Anders requirements met | Withdrawal granted; Anders procedures satisfied |
| Whether the appellate court must perform independent review for frivolity | N/A—no substantive appellate claims advanced | Court must perform full review under Penson/Anders | Independent review performed; no reversible error found |
| Whether the judgment contains a clerical/statutory error for counts 1 & 3 | Judgment should reflect conviction under §33.021(b)(1) consistent with indictment | Record supports correcting subsection to §33.021(b)(1) | Court modified judgment to correct counts 1 & 3 to §33.021(b)(1) |
| Whether counsel must notify defendant of appellate rights and effect of withdrawal | Counsel fulfilled notification and provided record access | Court ordered counsel to send opinion and advise on PDR rights; no new counsel appointed | Court ordered counsel to send opinion and notice; no substitute counsel appointed |
Key Cases Cited
- Anders v. California, 386 U.S. 738 (1967) (standard for counsel to seek withdrawal when appeal is frivolous)
- Penson v. Ohio, 488 U.S. 75 (1988) (requirement that appellate court independently review the record after an Anders brief)
- In re Schulman, 252 S.W.3d 403 (Tex. Crim. App. 2008) (Texas guidance on Anders briefs and required content)
- Kelly v. State, 436 S.W.3d 313 (Tex. Crim. App. 2014) (procedural requirements for counsel’s Anders compliance and defendant notice)
- Bigley v. State, 865 S.W.2d 26 (Tex. Crim. App. 1993) (appellate courts may modify judgments to make the record speak the truth)
- Ette v. State, 551 S.W.3d 783 (Tex. App.—Fort Worth 2017) (discussing appellate power to correct judgments when record provides necessary information)