Memorandum Opinion by Chief Justice Parker, 07-25-00212-CR, February 05, 2026.
On appeal from Moore County
Synopsis
The Seventh Court of Appeals exercised its authority under Texas Rule of Appellate Procedure 43.2(b) to reform a trial court judgment that incorrectly identified both the statute of conviction and the degree of the offense. While the Appellant was convicted of a Class B misdemeanor following the State’s abandonment of a higher charge, the written judgment erroneously reflected a Class A habitation offense; the appellate court corrected these clerical errors to ensure the judicial record accurately reflects the proceedings.
Relevance to Family Law
In high-conflict family law litigation, a party’s criminal history is often a central pillar of a “best interest” or “parental fitness” argument under Texas Family Code § 153.004. However, practitioners must be wary of “offense inflation”—where a final judgment erroneously reflects a more severe degree of crime than what was actually adjudicated. A Class A conviction involving a “habitation” carries significantly more weight in a custody evaluation or a request for supervised access than a Class B misdemeanor trespass. This case highlights the necessity for family law litigators to look beyond the face of a criminal judgment and verify the underlying record, as clerical errors regarding the “degree of offense” can unfairly prejudice a client’s standing in a SAPCR or divorce proceeding.
Case Summary
Fact Summary
Appellant Westyn Gregory Whetstone was charged with criminal mischief and criminal trespass. Although the criminal trespass charge was originally brought as a Class A misdemeanor alleging entry into a habitation, the record demonstrates that the State expressly abandoned the habitation allegation. Consequently, the trial proceeded as a Class B misdemeanor under Texas Penal Code § 30.05(d)(1). Appellant was advised on the record of this reduction, and the jury was properly charged regarding the Class B offense. Despite these facts, the final written judgment entered by the trial court erroneously listed the offense as “Crim Trespass Habit/Shltr/Suprfund/Infstrt,” cited the habitation statute (§ 30.05(d)(3)(A)), and labeled the degree as a “Class A Misdemeanor.”
Issues Decided
The primary issue was whether the appellate court should reform a trial court’s judgment when the record reflects a clerical error regarding the statute of conviction and the degree of the offense, even when appellate counsel has filed an Anders brief asserting the appeal is otherwise frivolous.
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 possesses the necessary information to do so. This power is analogous to the trial court’s power to correct errors via judgment nunc pro tunc. 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), establishing that appellate courts may correct clerical errors where the evidence necessary for correction appears in the record.
Application
The court conducted an independent review of the record following the filing of an Anders brief. While the court agreed that no reversible error existed regarding the conviction itself, it identified a significant discrepancy between the trial proceedings and the written judgment. The record clearly showed the State’s abandonment of the Class A enhancement. Because the jury charge and the oral admonishments reflected a Class B prosecution, the court determined that the errors in the written judgment were clerical in nature. Utilizing Rule 43.2(b), the court bypassed the need for a remand and directly reformed the judgment to reflect the correct statute (§ 30.05(d)(1)) and the correct degree (Class B).
Holding
The Court of Appeals held that it has the mandatory duty to reform a judgment when it has the necessary information to correct a clerical error. The court affirmed the conviction but modified the judgment to reflect a Class B misdemeanor instead of a Class A offense.
The court further held that even in the context of an Anders brief, the appellate court must independently examine the record to ensure the judgment’s accuracy, specifically regarding the degree of offense and the statute cited.
Practical Application
For the family law practitioner, this case serves as a reminder that a criminal judgment is not always the final word on the nature of a client’s or an opposing party’s conduct. If you are representing a party with a prior conviction that seems inconsistent with their version of events, you must pull the jury charge and the State’s notices of abandonment. Conversely, if you are using a judgment against an opposing party, ensure it has not been reformed or is not subject to reformation, as a “Class A Habitation” trespass is far more effective for proving a “pattern of conduct” than a Class B trespass.
Checklists
Verifying Criminal Judgments for Evidence
- Obtain the Full File: Do not rely solely on a “Judgment of Conviction.” Request the Jury Charge and any “State’s Notice of Abandonment” or “Motion to Dismiss” specific counts.
- Cross-Reference the Statute: Verify the Penal Code section cited in the judgment against the “Degree of Offense” listed. Discrepancies (like a Class B statute paired with a Class A label) are common clerical errors.
- Review Oral Admonishments: If the judgment resulted from a plea, review the transcript of the plea colloquy to ensure the degree of offense the party admitted to matches the judgment.
- Check for Reformation: Search the appellate history of the criminal cause number to see if a Rule 43.2 reformation has occurred.
Defending Against Offense Inflation
- Identify Clerical Errors Early: If your client’s criminal judgment is being used against them in a custody case and it contains a clerical error, move for a judgment nunc pro tunc in the criminal court immediately.
- Object to Admissibility: If a judgment is being offered to prove a higher degree of offense than what was adjudicated, object on the grounds that the judgment is clerical-heavy and does not “speak the truth” of the adjudication.
- Mitigate via Record: Use the jury charge from the criminal case as a secondary exhibit to prove the actual, lesser conduct for which the party was convicted.
Citation
Whetstone v. State, No. 07-25-00212-CR (Tex. App.—Amarillo Feb. 5, 2026, no pet. h.) (mem. op.).
Full Opinion
Family Law Crossover
In the context of Texas Family Code § 153.004, the distinction between a Class A and a Class B misdemeanor can be dispositive. A Class A trespass involving a habitation can be reframed by a creative advocate as a “near-burglary” or a threat to the safety of the household, potentially triggering restrictions on possession or even the rebuttable presumption against joint managing conservatorship if family violence is alleged. By contrast, a Class B trespass is often viewed as a minor “neighbor dispute” or a technical violation of a property line. If an opposing counsel attempts to weaponize an inflated judgment, the Whetstone opinion provides the roadmap for arguing that the document is clerically flawed and does not accurately represent the “degree of offense” for the purposes of the family court’s character assessment.
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