Kimberly Barton v. the State of Texas

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-23-00281-CR
__________________

KIMBERLY BARTON, Appellant

V.

THE STATE OF TEXAS, Appellee

__________________________________________________________________

On Appeal from the County Court at Law No. 2
Jefferson County, Texas
Trial Cause No. M327556
__________________________________________________________________

MEMORANDUM OPINION

A jury found Appellant Kimberly Barton 1 (“Appellant” or “Barton”) guilty of

class B misdemeanor theft. See Tex. Penal Code Ann. § 31.03(e)(2)(A). The trial

court assessed punishment at 180 days of confinement in county jail, and assessed a

fine of $200 and court costs, but the trial court suspended the sentence and placed

Barton on community supervision for two years. After the trial court found Barton

The judgment refers to Barton as “Kimberly Mechelle Barton” or “Kimberly
1

Mechelle Andrews” or “Kimberly Michelle Barton.”
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indigent, the trial court converted the fine and court costs to additional community

service hours and ordered that the sentence run concurrently with her sentence in

another felony case in trial cause number F13-16714. In three appellate issues,

Barton challenges the sufficiency of the evidence supporting the jury’s finding of

guilt and argues she received ineffective assistance of trial counsel.

Evidence at Trial

Testimony of Jennifer Quick

Jennifer Quick testified that she is employed as the store director at Academy

Sports & Outdoors in Port Arthur, Texas, and in June of 2020, she was the logistics

manager at the store. Footage from the store’s surveillance video of a theft on June

19, 2020, was admitted into evidence and published to the jury, and Quick testified

that she had reviewed the footage and that it fairly and accurately depicted the theft

that occurred at the store on that date. Quick testified that the footage showed

Kimberly Barton, who Quick identified at trial as the defendant, enter the store, take

two Yeti coolers valued at $300 each, avoid the checkout, exit the building without

paying, and that Barton took the coolers without the store’s consent. Quick identified

more footage from a different vantage point admitted at trial that depicted the view

of the exit door, and Quick testified that the video showed Barton carrying the two

coolers she had taken from the display, and the footage shows Barton exiting the

store and going towards a vehicle. Quick testified that some of the footage depicted

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the “tower” security device “blinking red” when Barton exited the store, and that the

blinking light indicates there is still a security tag on the item going out the door

which suggests that someone was attempting to take stolen goods outside the store.

According to Quick, Barton was ultimately able to get away with stolen coolers. On

cross-examination, Quick acknowledged that she personally did not see Barton take

the coolers and she did not know if she was at the store when the events depicted in

the video footage occurred. She clarified that she later was able to review the

surveillance footage through the store’s surveillance system, and that she recognized

Barton from several instances of Barton being in the store and that “every instance

was a theft incident.” Quick testified that her identification of the person in the video

as Barton was based on “previous encounters[,]” that Barton has a distinct walk and

tattoos including tattoos on the neck and a teardrop tattoo on her face that helped her

identify Barton as the individual in the footage, and that the individual in the footage

was wearing the exact same “ripped up jeans and the T-shirt[]” that Barton had worn

to the store on a previous occasion. According to Quick, the store’s loss prevention

team previously had Quick review video footage of the store’s repeat offenders, and

she had reviewed footage of three instances prior to this instance where the same

person stole merchandise from the store. Quick testified that the store’s loss

prevention file of the perpetrators in these types of videos contains names of

offenders who have had “no trespasses [] administered,” and that she was informed

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by the loss prevention team that the person in the videos of the three prior instances

was Kimberly Barton. According to Quick, she was able to compare the person

identified as Kimberly Barton in those earlier surveillance videos with the store’s

surveillance videos from June 19, 2020, and she determined that it was the same

person because of the facial tattoos. She acknowledged that zoomed-in images

purportedly of the surveillance videos from June 19, 2020 provided to her at trial by

the defense and that were admitted at trial were too distorted to show the facial

tattoos, but she testified that she was able to see a clearer depiction of the facial

tattoos from zoomed-in photographs of the store’s video footage. Quick testified that

she did not have those photographs, that they should have been provided to the State,

and that, to her knowledge, there was no reason why they would not have been

provided to the State.

Testimony of Charles Golden

Charles Golden testified that on June 19, 2020, he was the operations manager

at Academy and contacted law enforcement regarding a shoplifting incident.

According to Golden, the incident was captured by the store’s security system, and

he and others in the store and the store’s loss prevention department reviewed the

footage. Golden testified that when a suspected crime occurs at the store and is

caught on camera, the store sends the footage to loss prevention at Academy’s

corporate office, and loss prevention would handle forwarding it to law enforcement.

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The video footage was again played for the jury and Golden described what

transpired in the footage as follows:

. . . . Basically, Ms. Barton walks into the store, walks around the
customer service area, picks up two Yeti coolers. I think they were Yeti
Hoppers. I don’t remember that model for sure, walked back to the end
of the customer service, acted like she was looking at some sunglasses
and then circles back around when she thinks nobody’s looking and
walks out the door with them as a couple of our associates follow her
to the parking lot.

Golden testified that two Academy associates followed Barton out of the store but

did not leave the sidewalk because employees are not allowed to follow a suspect

“all the way out.” Golden testified that the footage shows that one of the two

associates, Jerry Nichols, was working nearby when the incident happened, but

Golden did not remember the other associate’s name or where they were in the store

at the time of the incident. Golden testified that Barton left in a vehicle with the

coolers.

Golden testified that, based on his personal knowledge, he believed the person

in the footage was Barton because he had seen her numerous other times in the store.

He identified the defendant as Barton and as the person depicted in the footage that

took the Yeti coolers. Golden also identified Barton as the person in other footage

from that same occurrence, and he testified the footage depicts Barton exiting the

store without paying for the Yeti coolers and Barton carrying the Yeti coolers in the

store’s parking lot.

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According to Golden, he did not immediately report the incident to law

enforcement because at the time of the offense Golden was setting up a boat and

trailer for a customer on the side of the building. Golden agreed that he did not

personally see the person who shoplifted the coolers, and his knowledge was based

on the surveillance video footage. Golden testified that Barton did not have any

consent to take the coolers and did not appear to have any intent to come back and

pay for them. Golden first reviewed the footage two or three days later with Jennifer

Quick, who was the manager on duty that day, and another manager, Donald Durrell.

Golden testified that the store has a “paperwork system” to track repeat offenders of

bad acts on the store’s property, and that the store provides the police with copies of

criminal trespass warnings and reports on repeat offenders. According to Golden,

there was a report in the store’s system for Barton, and he provided that information

to law enforcement.

Golden agreed that the store’s surveillance system had no way of enhancing

the footage, but that the footage could be paused and zoomed-in on. He also agreed

that it was impossible in the video footage admitted at trial to see the perpetrator’s

face or details on the face such as tattoos. Golden testified that he had face-to-face

personal interactions at least two times with Barton prior to this incident, the police

were called, and she was issued a criminal trespass warning. According to Golden,

on those prior occasions, Barton was “attempting to take things and when we

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confronted her, she had actually put them down and tried to leave the store.” Golden

testified that although Barton had stolen from the store many times, no theft charges

were brought because law enforcement would arrive to the store after she left.

According to Golden, Barton typically wore the same type clothes, the torn jeans

and a hat, and “always held her head down when she walked in the door past the

cameras[.]” It was Golden’s belief that, based on her clothing, behavior, and build,

that the person in the video footage was Barton. Golden testified that based on his

prior encounters with her in the store and her usual attire and behaviors, he identified

the person in the footage admitted at trial as the defendant, Kimberly Barton.

Testimony of Sergeant Granger

Sergeant Adam Granger with the Bridge City Police Department testified that

on June 22, 2020, he was a patrol officer with the Port Arthur Police Department and

responded to a call at Academy regarding a theft. Granger testified that through his

investigation he spoke with Golden and Quick, who discussed the facts surrounding

the theft, and they reported Barton as the perpetrator. Granger testified he reviewed

the security footage at the store and submitted an “ID request” so that detectives with

his department would later collect the footage.

Testimony of Kimberly Barton

Kimberly Barton testified that she was not at that Academy on June 19, 2020,

she denied that the video footage admitted at trial depicted her, and she testified that

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she has “never committed a theft in [her] life.” On cross-examination, Barton

admitted that she had been “trespassed warned” from the Academy in Port Arthur

before, but she testified that “it wasn’t because [she] was stealing[,] [i]t was because

[she] was with somebody stealing.” She initially denied that in July of 2020 she

pleaded “no contest” to a trespassing case, but when the prosecutor questioned her

about a judgment admitted at trial that indicated that Barton pleaded “no contest” to

trespass on July 29, 2020, Barton acknowledged that she pleaded “no contest” to

trespassing at Academy. She also testified that she has been previously convicted for

a drug-related felony, and that she had one year remaining of her ten-year probation

for that offense.

Sufficiency of the Evidence

In issues one and two, Barton challenges the sufficiency of the evidence

supporting the jury’s finding of guilt. In her first issue, she argues that the jury erred

in finding that she was guilty of theft when the State’s evidence was insufficient on

the identity issue. According to Barton, none of the State’s witnesses were reliable

on the identity issue and that the State’s witnesses “were only speculating that the

Appellant was the perpetrator or suspect.” In her second issue, she argues that the

jury erred in finding that the State had proven beyond a reasonable doubt that she

and the perpetrator of the offense are the same person “when the evidence was both

factually and legally insufficient.” Because her first two issues argue that there was

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insufficient evidence to support the jury’s finding that she was the same person who

committed the theft, we consider issues one and two together.

In reviewing the legal sufficiency of the evidence, we review all the evidence

in the light most favorable to the verdict to determine whether any rational factfinder

could have found the essential elements of the offense beyond a reasonable doubt.

Jackson v. Virginia, 443 U.S. 307, 319 (1979); Hooper v. State, 214 S.W.3d 9, 13

(Tex. Crim. App. 2007). We give deference to the factfinder’s responsibility to fairly

resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable

inferences from basic facts to ultimate facts. Hooper, 214 S.W.3d at 13. If the record

contains conflicting inferences, we must presume that the factfinder resolved such

facts in favor of the verdict and defer to that resolution. Brooks v. State, 323 S.W.3d

893, 899 n.13 (Tex. Crim. App. 2010) (citing Jackson, 443 U.S. at 326); Clayton v.

State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). The jury as factfinder is the

sole judge of the weight of the evidence and credibility of the witnesses, and it may

believe all, some, or none of the testimony presented by the parties. See Febus v.

State, 542 S.W.3d 568, 572 (Tex. Crim. App. 2018); Margraves v. State, 34 S.W.3d

912, 919 (Tex. Crim. App. 2000); Heiselbetz v. State, 906 S.W.2d 500, 504 (Tex.

Crim. App. 1995). The appellate court does not reweigh the evidence nor determine

the credibility of the evidence, nor does it substitute its own judgment for that of the

factfinder. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).

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“Direct and circumstantial evidence are treated equally: ‘Circumstantial

evidence is as probative as direct evidence in establishing the guilt of an actor, and

circumstantial evidence alone can be sufficient to establish guilt.’” Clayton, 235

S.W.3d at 778 (quoting Hooper, 214 S.W.3d at 13). Each fact need not point directly

and independently to the guilt of the defendant, as long as the cumulative force of

all the incriminating circumstances is sufficient to support the conviction. Temple v.

State, 390 S.W.3d 341, 359 (Tex. Crim. App. 2013); Hooper, 214 S.W.3d at 13;

Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993).

A person commits theft if with intent to deprive the owner of property, she

unlawfully appropriates the property “without the owner’s effective consent[.]” Tex.

Penal Code Ann. § 31.03(a), (b)(1). “Identity may be proven by direct evidence,

circumstantial evidence, or by reasonable inferences from the evidence.” See

Ingerson v. State, 559 S.W.3d 501, 509 (Tex. Crim. App. 2018) (citing Gardner v.

State, 306 S.W.3d 274, 285 (Tex. Crim. App. 2009)). The identity of the defendant

as the perpetrator of the alleged crime may be proven by inferences, and when there

is no direct evidence of the perpetrator’s identity elicited from trial witnesses, no

formalized procedure is required for the State to prove the identity of the defendant

as the perpetrator of the crime. Clark v. State, 47 S.W.3d 211, 214 (Tex. App.—

Beaumont 2001, no pet.).

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The jury heard Quick testify that she recognized Barton from several instances

of Barton previously being in the store, that she had in the past viewed footage

provided by the loss prevention team of a person identified to her as Barton

committing theft in the store on three occasions, that the person in those videos was

the same person in the footage in this case, and that she identified Barton as the

offender in this case also based on Barton’s distinguishing walk, tattoos, and familiar

clothing. The jury heard Golden testify that he identified Barton as the perpetrator

in the store’s surveillance footage based on prior face-to-face encounters in the store

when Barton’s attempt to commit theft was thwarted and law enforcement ultimately

issued a criminal trespass warning. The jury also heard Golden testify that he

identified Barton based on her familiar clothing, behavior, and build. Furthermore,

the jury had the opportunity to view the footage and photographs admitted at trial

and observe Barton at trial. The jury could have disbelieved Barton’s testimony that

she was not at the Academy in question on the date of the offense and could have

disbelieved her testimony that she did not steal the coolers as alleged by the State.

See Margraves, 34 S.W.3d at 919. Direct evidence is not required, and the fact that

none of the State’s witnesses at trial saw the offense when it happened does not mean

the evidence is insufficient to support the jury’s finding. See Clayton, 235 S.W.3d at

778.

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Having viewed the evidence in the light most favorable to the verdict, we

conclude that a rational factfinder could have found beyond a reasonable doubt that

Barton was the person who took the coolers from Academy without paying for them

and without consent. See Jackson, 443 U.S. at 319; Temple, 390 S.W.3d at 360. The

jury was able to assess the credibility and demeanor of the witnesses who testified

at trial, and we presume that the jury resolved all conflicts in the testimony, weighed

the evidence, and drew reasonable inferences from the evidence in a manner that

supports the verdict. See Hooper, 214 S.W.3d at 13; Brooks, 323 S.W.3d at 899 n.13;

Clayton, 235 S.W.3d at 778. The jury could have reasonably inferred from the

evidence presented that Barton was the person that committed the theft. “This was

not a determination so outrageous that no rational trier of fact could agree.” Wirth v.

State, 361 S.W.3d 694, 698 (Tex. Crim. App. 2012). We overrule issues one and

two.

Allegations of Ineffective Assistance of Counsel

In issue three, Barton argues that her counsel was ineffective in representing

her because he was not prepared, he should have “cross-examined the State’s

witnesses more zealously and th[o]roughly on the issue of identity in regard to the

store surveillance tape[,]” and he should have been more attentive when the State

was presenting its case.

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Both the United States Constitution and the Texas Constitution guarantee an

accused the right to assistance of counsel. U.S. Const. amend. VI; Tex. Const. art. I,

§ 10; Tex. Code Crim. Proc. Ann. art. 1.051. This right necessarily includes the right

to reasonably effective assistance of counsel. Strickland v. Washington, 466 U.S.

668, 686 (1984); Ex parte Gonzales, 945 S.W.2d 830, 835 (Tex. Crim. App. 1997).

With respect to an ineffective assistance claim, our review of counsel’s performance

is highly deferential, and we make a strong presumption that counsel’s performance

fell within the wide range of reasonably professional assistance. Strickland, 446 U.S.

at 689; Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011) (citing

Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006)). To overcome that

presumption, Appellant must satisfy the two prongs established by Strickland v.

Washington by demonstrating that (1) counsel’s representation fell below an

objective standard of reasonableness, and (2) deficient performance prejudiced the

defense. Lopez, 343 S.W.3d at 142 (citing Strickland, 466 U.S. at 687); see also

Hernandez v. State, 726 S.W.2d 53, 55-56 (Tex. Crim. App. 1986) (adopting and

applying the Strickland test). Under Strickland, first, the defendant “must prove, by

a preponderance of the evidence, that there is, in fact, no plausible professional

reason for a specific act or omission.” Bone v. State, 77 S.W.3d 828, 836 (Tex. Crim.

App. 2002). Second, the defendant must demonstrate prejudice from the attorney’s

performance. That is, considering the totality of the evidence before the judge or

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jury, “there is a reasonable probability that, but for counsel’s unprofessional errors,

the result of the proceeding would have been different.” Strickland, 466 U.S. at 694,

696. “Unless [an] appellant can prove both prongs, an appellate court must not find

counsel’s representation to be ineffective.” Lopez, 343 S.W.3d at 142 (citing

Strickland, 466 U.S. at 687).

The record must contain evidence of counsel’s reasoning, or lack thereof, to

rebut the presumption that counsel’s performance fell within the wide range of

reasonably professional assistance. Ortiz v. State, 93 S.W.3d 79, 88-89 (Tex. Crim.

App. 2002) (“If counsel’s reasons for his conduct do not appear in the record and

there is at least the possibility that the conduct could have been legitimate trial

strategy, we will defer to counsel’s decisions and deny relief on an ineffective

assistance claim on direct appeal.”). “When such direct evidence is not available, we

will assume that counsel had a strategy if any reasonably sound strategic motivation

can be imagined.” Lopez, 343 S.W.3d at 143 (citing Garcia v. State, 57 S.W.3d 436,

440 (Tex. Crim. App. 2001)).

“An appellate court looks to the totality of the representation and the particular

circumstances of each case in evaluating the effectiveness of counsel.” Thompson v.

State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999) (citing Ex parte Felton, 815

S.W.2d 733, 735 (Tex. Crim. App. 1991)). Allegations of ineffectiveness must be

shown in the record, and the record must affirmatively establish the alleged

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ineffectiveness. See id. Ordinarily, on direct appeal, the record will not have been

sufficiently developed during the trial regarding counsel’s alleged errors to

demonstrate in the appeal that trial counsel provided ineffective assistance under the

Strickland standards. Menefield v. State, 363 S.W.3d 591, 592-93 (Tex. Crim. App.

2012); Lopez, 343 S.W.3d at 143. Before we denounce trial counsel’s actions as

ineffective, counsel should normally be given an opportunity to explain the

challenged actions. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App.

2005). When counsel has not been given an opportunity to explain the challenged

actions, we will find deficient performance only if the conduct was “‘so outrageous

that no competent attorney would have engaged in it.’” Id. (quoting Garcia, 57

S.W.3d at 440).

“To show prejudice, ‘the defendant must show that there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding

would have been different. A reasonable probability is a probability sufficient to

undermine confidence in the outcome.’” Jackson v. State, 877 S.W.2d 768, 771

(Tex. Crim. App. 1994) (quoting Strickland, 466 U.S. at 694); see Bone, 77 S.W.3d

at 833 (appellant must demonstrate a reasonable probability that but for defense

counsel’s errors, the outcome would have been different). Thus, a defendant must

show “that counsel’s errors were so serious as to deprive defendant of a fair trial, a

trial whose result was reliable.” Strickland, 466 U.S. at 687. It is not sufficient for

15
the defendant to show “that the errors had some conceivable effect on the outcome

of the proceeding.” Id. at 693.

One of Barton’s ineffective-assistance-of-counsel complaints is that defense

counsel failed to cross-examine the State’s witnesses “more zealously and

th[o]roughly on the issue of identity in regard to the store surveillance tape.” “Cross-

examination is inherently risky, and a decision not to cross-examine a witness is

often the result of wisdom acquired by experience in the combat of trial.” Ex parte

McFarland, 163 S.W.3d 743, 756 (Tex. Crim. App. 2005) (orig. proceeding) (citing

Coble v. State, 501 S.W.2d 344, 346 (Tex. Crim. App. 1973)). “Furthermore, cross-

examination is an art, not a science, and it cannot be adequately judged in hindsight.”

Id. “If unsuccessful, ‘cross-examination can serve to bolster the credibility of the

witness and underscore the very points that are sought to be impeached.’” Dearing

v. State, No.06-22-00065-CR, 2022 Tex. App. LEXIS 6896, at *17 (Tex. App.—

Texarkana Sept. 13, 2002, no pet.) (mem. op., not designated for publication)

(quoting Jones v. State, 500 S.W.3d 106, 115 (Tex. App.—Houston [1st Dist.] 2016,

no pet.)); see also Ex parte McFarland, 163 S.W.3d at 756 n.40 (citing Dannhaus v.

State, 928 S.W.2d 81, 88 (Tex. App.—Houston [14th Dist.] 1996, pet. ref’d)).

We note that Barton’s counsel devoted much of his cross-examination of the

State’s witnesses to the identity of the perpetrator in the surveillance footage. Our

review of the record indicates that Barton did not file a motion for new trial and did

16
not afford her counsel an opportunity to explain himself. Without more, we cannot

evaluate whether counsel had a reasonable reason for not cross-examining the

witnesses more vigorously about the store surveillance footage. See id. at ** 17-18.

Here, counsel could have been afraid that the witnesses’ answers to further cross-

examination could strengthen their testimony or otherwise strengthen the State’s

case. Because there is a plausible professional reason for counsel’s actions, the

argument fails to satisfy the first prong of Strickland. See Bone, 77 S.W.3d at 836.

As for Barton’s general complaints that her trial counsel was unprepared and

inattentive during the State’s presentation of its case, Appellant’s brief does not

provide any substantive analysis nor does Appellant point to record references to

show the purported inattentiveness or how counsel was unprepared, and Appellant

fails to show how the conduct constituted a deficient performance. Appellant has

therefore waived review of these arguments. See Tex. R. App. P. 38.1(i) (To assert

an issue on appeal, an appellant’s brief must contain “a clear and concise argument

for the contentions made, with appropriate citations to authorities and to the

record.”); Lucio v. State, 351 S.W.3d 878, 896-97 (Tex. Crim. App. 2011) (an

appellant waives an issue on appeal if she does not adequately brief the issue by

providing supporting argument and appropriate citations to authorities and to the

record).

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Furthermore, Appellant’s brief fails to present argument as to how she was

prejudiced by any of her trial counsel’s alleged deficiencies other than her

conclusory statements that those alleged deficiencies caused her to “suffer[]

prejudice[,]” “suffer greatly[,]” and that if her counsel had not committed the alleged

deficiencies Appellant “would have not be[en] found guilty of the offense of theft.”

A conclusory statement that the defendant was prejudiced by her trial counsel’s

allegedly deficient performance is inadequate to establish prejudice under

Strickland. See Ex parte Parra, 420 S.W.3d 821, 828 (Tex. Crim. App. 2013). We

conclude that Appellant has not met her burden to show that her trial counsel’s

performance was deficient or that, but for counsel’s deficient performance, the result

of the proceeding would have been different. See Bone, 77 S.W.3d at 833.

Accordingly, we overrule issue three.

We note that the section of the judgment entitled “Plea to Offense” states

“Guilty[,]” but the reporter’s record reflects that Barton pleaded “not guilty.” This

Court has the authority to reform the trial court’s judgment to correct clerical errors.

See Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App.

1993). We therefore reform the trial court’s judgment to delete the plea of “Guilty”

and substitute “Not Guilty.”

Having overruled Appellant’s issues, we affirm the trial court’s judgment as

reformed.

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AFFIRMED AS REFORMED.

LEANNE JOHNSON
Justice

Submitted on April 11, 2024
Opinion Delivered May 1, 2024
Do Not Publish

Before Golemon, C.J., Johnson and Wright, JJ.

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