Memorandum Opinion by Chief Justice Parker, 07-25-00211-CR, February 05, 2026.
On appeal from the County Court at Law of Moore County, Texas.
Synopsis
The Seventh Court of Appeals exercised its authority under Texas Rule of Appellate Procedure 43.2(b) to reform a criminal judgment that erroneously reflected a Class A misdemeanor conviction for trespass of a habitation. Although the State expressly abandoned the habitation allegation and proceeded on a Class B charge, the written judgment contained a clerical error that the appellate court corrected to make the record “speak the truth.”
Relevance to Family Law
For the family law practitioner, a client’s criminal record is often the primary exhibit in a custody or protective order hearing. The distinction between a Class B “Criminal Trespass” and a Class A “Trespass of a Habitation” is not merely academic; it is the difference between a low-level misdemeanor and a crime that suggests a violation of the sanctity of a home, which can trigger heightened scrutiny under Texas Family Code § 153.004 regarding the “best interest of the child.” This case underscores the necessity of auditing a client’s criminal judgments for clerical errors that could be weaponized by opposing counsel to argue for supervised visitation or restrictive possession orders.
Case Summary
Fact Summary
Westyn Gregory Whetstone was convicted of criminal mischief and criminal trespass. While the trespass charge was initially filed as a Class A misdemeanor involving a “habitation,” the trial record clearly indicated that the State abandoned the habitation allegation. Whetstone was advised on the record that he was being tried for a Class B offense, and the jury was charged at both the guilt-innocence and punishment phases based on the Class B level of the offense. However, the written judgment signed by the trial court incorrectly identified the offense as “Crim Trespass Habit/Shltr/Suprfund/Infstrt” under Texas Penal Code § 30.05(d)(3)(A), labeling it a Class A misdemeanor.
Issues Decided
Whether an appellate court must reform a criminal judgment when the written instrument contains clerical errors identifying a higher degree of offense than what was actually adjudicated and supported by the trial record.
Rules Applied
The court applied Texas Rule of Appellate Procedure 43.2(b), which grants appellate courts the authority to reform a judgment to make the record “speak the truth” when the court has the necessary information to do so. The court also relied on Bigley v. State, 865 S.W.2d 26 (Tex. Crim. App. 1993) and Asberry v. State, 813 S.W.2d 526 (Tex. App.—Dallas 1991, pet. ref’d), which establish that appellate courts possess the same power to correct clerical errors that a trial court could correct via a judgment nunc pro tunc.
Application
In its independent review of the record following an Anders brief, the court determined that while there were no non-frivolous grounds for a total reversal of the conviction, the judgment was factually and legally inaccurate regarding the degree of the offense. The court noted the discrepancy between the oral proceedings—where the State abandoned the habitation element—and the written judgment. Because the jury was only charged on the Class B offense and the sentencing fell within the Class B range, the appellate court determined that it had sufficient evidence within the record to reform the judgment without requiring further trial court intervention.
Holding
The court held that the written judgment incorrectly reflected a Class A conviction when the defendant was actually tried and sentenced for a Class B offense.
The court granted counsel’s motion to withdraw and affirmed the criminal mischief conviction. Crucially, the court reformed the criminal trespass judgment to reflect a conviction under Texas Penal Code § 30.05(d)(1) as a Class B misdemeanor and affirmed the judgment as reformed.
Practical Application
In high-conflict litigation, a “habitation” trespass conviction is a gift to a creative opposing counsel. It allows them to paint your client as a home invader or a threat to the other parent’s safety. If your client has a criminal history, you must obtain the underlying “Charge to the Jury” or the “Statement of Facts” from the criminal trial. If the written judgment says “Class A” or “Habitation” but the record says otherwise, you must seek a judgment nunc pro tunc in the trial court or, if the case is on appeal, request reformation. Do not allow a clerical error in a criminal court to dictate the possessory rights in a family court.
Checklists
Auditing the Criminal Judgment
- Compare the Statute: Ensure the Texas Penal Code section cited in the judgment matches the elements described in the “Offense for Which Defendant Convicted” section.
- Verify the Degree: Check if the degree of offense (Class A vs. Class B) aligns with the actual sentence imposed and the jury charge.
- Identify Abandoned Allegations: Review the trial transcript or the State’s motions to see if aggravating factors (like “habitation” or “deadly weapon”) were abandoned before the verdict.
Correcting the Record for Family Court
- Obtain the Record: Secure the jury charge and the oral pronouncement of the sentence.
- File for Nunc Pro Tunc: If the error is purely clerical (not judicial reasoning), file a motion for judgment nunc pro tunc in the original criminal trial court.
- Appellate Reformation: If the criminal case is currently on appeal, ensure appellate counsel moves for reformation under TRAP 43.2(b).
- Mitigation in Family Court: If the judgment is already final and uncorrected, prepare a memorandum for the family court explaining the clerical error, supported by the criminal trial’s jury charge.
Citation
Whetstone v. State, No. 07-25-00211-CR (Tex. App.—Amarillo Feb. 5, 2026, no pet. h.) (mem. op.).
Full Opinion
Family Law Crossover
This ruling provides a strategic roadmap for “de-escalating” a client’s criminal history during a divorce or custody suit. In Texas, a “Class A Habitation” trespass is often viewed by social workers and ad litems as a precursor to domestic violence. By citing Whetstone, a family lawyer can argue that a written criminal judgment is not infallible and that the appellate court’s willingness to reform such judgments proves that clerical errors are common. If you are representing the petitioner, you should verify if the respondent’s “simple” trespass was actually a “habitation” trespass that was incorrectly recorded as a lower offense—though usually, the error works in the opposite direction. Always look behind the four corners of the criminal judgment.
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