Opinion
NO. 12-19-00344-CR
06-05-2020
ZACHARY LEE HALL, APPELLANT v. THE STATE OF TEXAS, APPELLEE
APPEAL FROM THE 241ST JUDICIAL DISTRICT COURT SMITH COUNTY , TEXAS
MEMORANDUM OPINION
Zachary Lee Hall appeals the trial court's order revoking his community supervision. Appellant's counsel filed a brief in compliance with Anders v. California , 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967) and Gainous v. State , 436 S.W.2d 137 (Tex. Crim. App. 1969). Thereafter, Appellant filed a pro se brief. We modify and affirm as modified.
BACKGROUND
Appellant was charged by indictment with evading arrest or detention with a motor vehicle and pleaded "guilty." The trial court accepted Appellant's plea, found him "guilty" as charged, and sentenced him to imprisonment for ten years. The trial court then suspended Appellant's sentence and placed him on community supervision for ten years.
The State alleged that Appellant used the motor vehicle as a deadly weapon during the commission of the offense. Appellant signed a written stipulation to the facts underlying this allegation. However, at Appellant's sentencing hearing, the trial court expressed that it would withhold making a deadly weapon finding, and no deadly weapon finding appears in the written judgment of conviction. See TEX. CODE CRIM. PROC. ANN. art. 42A.054(b)(1) (West Supp. 2019).
Subsequently, the State filed a motion to revoke Appellant's community supervision alleging that he violated certain terms and conditions thereof. Specifically, the State alleged that Appellant violated the trial court's community supervision order by failing to obey the law because he committed the offenses of interference with emergency request for assistance and assault bodily injury-family violence.
The trial court conducted a hearing on the State's motion, and Appellant pleaded "not true" to the two aforementioned allegations. At the hearing, Ofelia Ramire, Appellant's probation officer, testified that during the term of his community supervision, he was arrested for assault bodily injury-family violence and interference with emergency request for assistance. Ann-Marie Mercer, Appellant's fiancé at the time in question, testified about the events leading to Appellant's arrest. Specifically, she testified that, following an argument about Appellant's supposed infidelity, she told Appellant she was leaving. According to Mercer, in response, Appellant grabbed her from behind and began punching her with his closed fist, initially on her right thigh and continuing up her spine to the backside of her left shoulder. Mercer stated that after Appellant repeatedly struck her, she attempted to call the police, but Appellant took her phone away from her and stated, "You're not going to call the cops because I'm going to kill you before you do . . . ." Mercer further stated that Appellant snapped her phone in half. She testified that as she left their habitation, Appellant grabbed her by the throat. She further testified that she was able to go to a neighbor's residence, where she borrowed a phone to call the police. The State introduced photographs into the record, which depicted the bruises and scratches resulting from Appellant's actions.
Following the presentation of evidence and arguments of counsel, the trial court revoked Appellant's community supervision and sentenced him to imprisonment for ten years. In the trial court's judgment revoking Appellant's community supervision, it made an affirmative deadly weapon finding. This appeal followed.
ANALYSIS PURSUANT TO ANDERS V. CALIFORNIA
Appellant's counsel filed a brief in compliance with Anders v. California and Gainous v. State. Appellant's counsel states that she diligently reviewed the appellate record and is of the opinion that the record reflects no reversible error and that there is no error upon which an appeal can be predicated. She further relates that she is well acquainted with the facts in this case. In compliance with Anders , Gainous , and High v. State , 573 S.W.2d 807 (Tex. Crim. App. [Panel Op.] 1978), Appellant's brief presents a chronological summation of the procedural history of the case and further states that Appellant's counsel is unable to raise any arguable issues for appeal.
Counsel notes in her brief that the trial court entered a deadly weapon finding in its judgment revoking Appellant's community supervision and states that if this court "has any concerns regarding this finding," she is willing to provide additional briefing on this issue. It is unclear to this court why counsel was unable to address the issue fully in Appellant's brief, and we further note that the State also declined to specifically brief this issue. However, as is its duty, this court independently has reviewed the record and conducted its own research on the issue. Having done so, we decline to request additional briefing.
In compliance with Kelly v. State , Appellant's counsel provided Appellant with a copy of the brief, notified Appellant of her motion to withdraw as counsel, informed Appellant of his right to file a pro se response, and took concrete measures to facilitate Appellant's review of the appellate record. See Kelly v . State , 436 S.W.3d 313, 319 (Tex. Crim. App. 2014). Appellant was given time to file his own brief.
Thereafter, Appellant filed a pro se brief in which he raised the following issues: (1) illegality of sentence and (2) ineffective assistance of appellate counsel. See Bledsoe v . State , 178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005).
We have construed Appellant's brief and the issues raised therein liberally in the interest of justice. See Gill v . State , No. 12-11-00282-CR, 2012 WL 3804369, at *1 n.2 (Tex. App.-Tyler Aug. 31, 2012, pet. ref'd) (mem. op., not designated for publication).
As is our duty, we have conducted a full examination of all the proceedings to determine whether the appeal of this case is wholly frivolous. See Anders , 386 U.S. at 744, 87 S. Ct. at 1400. Having done so, we conclude that it is not.
DEADLY WEAPON FINDING AFTER REVOCATION OF
"REGULAR" COMMUNITY SUPERVISION
The Texas Code of Criminal Procedure provides that the trial court "shall" enter an affirmative deadly weapon finding in the judgment of the court. TEX. CODE CRIM. PROC. ANN. art. 42A.054(c) (West Supp. 2019). When a trial court "forgoes an affirmative finding regarding a deadly weapon at the time of the judgment and suspends the sentence, it has no authority to enter such finding in connection with the subsequent revocation of community supervision." Rivers v. State , 99 S.W.3d 659, 660 (Tex. App.-Waco 2003, no pet.) (citing Ex parte Shaw , 724 S.W.2d 75, 77 (Tex. Crim. App. 1987) (orig. proceeding) (holding that, without regard to whether evidence supported Shaw's guilty plea, because trial court forwent affirmative finding in judgment as to deadly weapon at time of guilty plea when it granted applicant community supervision, it was without authority to do so after revocation of community supervision)); see also Williams v . State , No. 11-06-00262-CR, 2007 WL 2675536, at *1 (Tex. App.-Eastland Sept. 13, 2007, no pet.) (op., not designated for publication); but cf. Thomas v . State , No. 05-14-00725-CR, 2015 WL 3814302, at *1 (Tex. App.-Dallas June 18, 2015, no pet.) (mem op., not designated for publication) (where court entered unadjudicated judgment on appellant's guilty plea deferring adjudication, because parole eligibility was not applicable, deadly weapon finding was not necessary; therefore when trial court later revoked appellant's community supervision, adjudicated his guilt, and assessed punishment, Article 42A.054(c) required that trial court enter any affirmative finding of deadly weapon in order adjudicating guilt).
Here, at the original sentencing hearing, the trial court expressed to Appellant that it was withholding a deadly weapon finding from its judgment of conviction, and the court's written judgment of conviction excludes such a finding. Therefore, we hold that the trial court had no authority subsequently to enter the deadly weapon finding in its judgment revoking Appellant's community supervision. See Shaw , 724 S.W.2d at 77; Rivers , 99 S.W.3d at 660. Because one purpose of entering an affirmative deadly weapon finding in a judgment is to assist the Texas Department of Criminal Justice in calculating a prisoner's parole eligibility date, we further hold that the erroneous deadly weapon finding in the trial court's judgment revoking Appellant's community supervision must be addressed. See Johnson v . State , 233 S.W.3d 420, 424 (Tex. App.-Fort Worth 2007, pet. ref'd).
In the judgment of conviction, under the heading "Findings on Deadly Weapon[,]" the notation "N/A" appears. See Pryor v . State , No. 14-15-00057-CR, 2015 WL 6768673, at *1 (Tex. App.-Houston [14th Dist.] Nov. 5, 2015, no pet.) (mem. op., not designated for publication) (entry of "N/A" in judgment is explicit determination that deadly weapon finding not being made).
At the revocation hearing, when the trial court expressed its intent to make an affirmative deadly weapon finding in the judgment revoking Appellant's community supervision, Appellant objected to the deadly weapon finding on the grounds of "res judicata." The trial court responded that Appellant had preserved the issue for appeal. We conclude that Appellant's objection, in the context of the hearing, was specific enough to make the trial court aware of his complaint. See TEX. R. APP. P. 33.1; Resendez v. State , 306 S.W.3d 308, 312 (Tex. Crim. App. 2009) (complaint not preserved for appeal unless made to trial court by timely request, objection or motion that stated grounds for ruling that complaining party sought from trial court with sufficient specificity to make trial court aware of complaint, unless specific grounds were apparent from context); see also res judicata, BLACK'S LAW DICTIONARY (8th ed. 2004).
MODIFICATION OF JUDGMENT VERSUS REMAND FOR APPOINTMENT OF NEW COUNSEL
When faced with an Anders brief, the court of appeals ordinarily has two choices—it either may determine that the appeal is wholly frivolous and issue an opinion explaining that it has reviewed the record and finds no reversible error, or it may determine that arguable grounds for appeal exist and remand the cause to the trial court so that new counsel may be appointed to brief the issues. See Bledsoe , 178 S.W.3d at 826-27. Only after the issues have been briefed by new counsel may the court of appeals address the merits of the issues raised. Id. at 827.
However, we have the authority to modify a judgment in an Anders case and affirm the judgment as modified where there is nonreversible error. See Ferguson v . State , 435 S.W.3d 291, 293 (Tex. App.-Waco 2014, no pet.); see also Thomas v . State , No. 06-19-00238-CR, 2020 WL 1467025, at *1 (Tex. App.-Texarkana Mar. 26, 2020, no pet. h.) (mem. op., not designated for publication). Moreover, the court of criminal appeals has stated that "the law does not compel us to require courts to perform useless tasks." See Ferguson , 435 S.W.3d at 294 (citing Homan v. Hughes , 708 S.W.2d 449, 454 (Tex. Crim. App. 1986)).
In the instant case, modifying the trial court's judgment revoking Appellant's community supervision to remove the trial court's erroneous deadly weapon finding does not result in a reversal of Appellant's conviction. Accordingly, we do not conclude that remand for the appointment of new counsel is necessary in this case because it would amount to ordering the trial court to undertake a useless task. See, e.g., Ferguson , 435 S.W.3d at 294-95.
CONCLUSION
Having performed an independent review of the record and having determined that there is error in the judgment revoking Appellant's community supervision, we modify the trial court's judgment revoking Appellant's community supervision by deleting its "affirmative finding of a Deadly Weapon, to-wit: a motor vehicle" under the heading "Findings on Deadly Weapon[.]"
As required by Stafford v. State , 813 S.W.2d 503 (Tex. Crim. App. 1991), Appellant's counsel has moved for leave to withdraw. See also In re Schulman , 252 S.W.3d 403, 407 (Tex. Crim. App. 2008) (orig. proceeding). We carried the motion for consideration with the merits. Having done so and having found no reversible error, Appellant's counsel's motion for leave to withdraw is hereby granted and the appeal of the trial court's judgment revoking Appellant's community supervision, as modified , is affirmed.
As a result of our disposition of this case, Appellant's counsel has a duty to, within five days of the date of this opinion, send a copy of the opinion and judgment to Appellant and advise him of his right to file a petition for discretionary review. See TEX. R. APP. P. 48.4; In re Schulman , 252 S.W.3d at 411 n.35. Should Appellant wish to seek review of this case by the Texas Court of Criminal Appeals, he must either retain an attorney to file a petition for discretionary review on his behalf or he must file a petition for discretionary review pro se. Any petition for discretionary review must be filed within thirty days from the date of either this opinion or the date that the last timely motion for rehearing is overruled by this court. See TEX. R. APP. P. 68.2. Any petition for discretionary review must be filed with the Texas Court of Criminal Appeals. See TEX. R. APP. P. 68.3(a). Any petition for discretionary review should comply with the requirements of Texas Rule of Appellate Procedure 68.4. See In re Schulman , 252 S.W.3d at 408 n.22.
GREG NEELEY
Justice Opinion delivered June 5, 2020.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
(DO NOT PUBLISH)
COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
Appeal from the 241st Judicial District Court of Smith County, Texas. (Tr.Ct.No. 241-0404-18)
THIS CAUSE came to be heard on the appellate record and the briefs filed herein, and the same being considered, because it is the opinion of this court that there was no reversible error in the judgment of the court below, it is ORDERED, ADJUDGED and DECREED by this court that the trial court's judgment revoking Appellant's community supervision be modified by deleting its "affirmative finding of a Deadly Weapon, to-wit: a motor vehicle" under the heading "Findings on Deadly Weapon[.]"; in all other respects the judgment of the trial court is affirmed; and that this decision be certified to the court below for observance.
Greg Neeley, Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.