Adrian D. Upshaw v. State ( 2011 )

NO. 12-10-00249-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
ADRIAN D. UPSHAW, § APPEAL FROM THE 241ST
APPELLANT
V. § JUDICIAL DISTRICT COURT
THE STATE OF TEXAS,
APPELLEE § SMITH COUNTY, TEXAS
MEMORANDUM OPINION
Adrian D. Upshaw appeals his conviction for possession of a prohibited substance in a
correctional facility. In his sole issue, he argues that the trial court’s judgment identifies the
wrong person as his trial counsel. We modify the judgment of the trial court, and as modified,
affirm.
BACKGROUND
In April 2010, Appellant entered a negotiated guilty plea to possession of a prohibited item
in a correctional facility; namely, marijuana in the Smith County jail. He was placed on
community supervision for ten years. In June 2010, the State filed an application to revoke
Appellant’s community supervision, alleging that he had used PCP while on community
supervision. Appellant pleaded “true” to the allegation. Based upon his plea, Appellant was
sentenced to six years of imprisonment. This appeal followed.
JUDGMENT
In his sole issue, Appellant argues that the judgment lists the wrong person as his trial
counsel. The judgment in a criminal case must list the name of the defendant’s counsel. See
TEX. CODE CRIM. PROC. ANN. art. 42.01, § 1(2) (Vernon Supp. 2010). The statute does not
specifically state whether trial counsel or appellate counsel, when they are different, should be
listed. In context, however, it appears that it is trial counsel who should be listed because the
other required entries relate to the trial or the final hearing in the case. Id.
Appellant’s sentence was pronounced on July 21, 2010, and the trial court signed its
judgment on the same day. The trial court appointed appellate counsel on July 28, 2010.
Appellant also filed his notice of appeal on July 28, 2010. The judgment lists his appellate
counsel as the “Attorney for Defendant” and does not list the attorney who represented him at trial.
Appellant requests that we amend the judgment to delete the name of his appellate counsel
and replace it with the name of his trial counsel, Mr. Clifton Roberson. The State joins
Appellant’s request. Moreover, the caselaw supports Appellant’s request. See Blanton v. State,
No. 12-09-00448-CR, 2010 WL 4274774, at *2 (Tex. App.–Tyler Oct. 29, 2010, no pet.) (mem.
op., not designated for publication). As we stated in Blanton, we have the authority to modify or
reform an incorrect judgment when, as here, we have the necessary information before us to do so.
See id.; see also TEX. R. APP. P. 43.2(b).
The State agrees that Mr. Clifton Roberson represented Appellant prior to his conviction.
On July 28, 2010, Roberson filed a motion to withdraw as counsel following the final hearing in
this case, and the motion was granted that same day. According to the reporter’s record,
Roberson represented Appellant through his sentencing, which preceded the entry of the signed
judgment. Therefore, we sustain Appellant’s sole issue.
DISPOSITION
We modify the judgment to reflect that Appellant was represented by Clifton Roberson.
As modified, we affirm the judgment of the trial court.
BRIAN T. HOYLE
Justice
Opinion delivered June 30, 2011.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
(DO NOT PUBLISH)