Opinion
Nos. 05-04-01628-CR, 05-04-01629-CR
Opinion Filed March 16, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 292nd Judicial District Court, Dallas County, Texas, Trial Court Cause Nos. F03-73319-TV, F03-73320-TV. Affirmed as Modified.
Before Justices RICHTER, LANG, AND MAZZANT.
OPINION
Dorothy Graciela Thompson waived a jury trial and pleaded guilty to two aggravated assaults. Pursuant to the plea agreements, the trial court deferred adjudicating guilt, placed appellant on five years' community supervision, and assessed a $1000 fine in each case. The State later moved to adjudicate guilt, asserting appellant committed a new offense of assault-family violence, along with other violations of the terms of her supervision. Appellant pleaded not true to the allegations. Following a hearing, the trial court found the allegations true, adjudicated appellant guilty, and sentenced her to two years' imprisonment in each case. Appellant's attorney filed briefs in which she concludes the appeals are wholly frivolous and without merit. The briefs meet the requirements of Anders v. California, 386 U.S. 738 (1967). The briefs present a professional evaluation of the record showing why, in effect, there are no arguable grounds to advance. See High v. State, 573 S.W.2d 807, 811 (Tex.Crim.App. [Panel Op.] 1978). In a pro se response to counsel's briefs, appellant contends the evidence is insufficient to prove she committed a new offense of assault-family violence. We have reviewed the record, counsel's briefs, and appellant's pro se response. See Bledsoe v. State, 178 S.W.3d 824 (Tex.Crim.App. 2005). We agree the appeals are frivolous and without merit, and find nothing in the record that might arguably support the appeals. In a cross-point, the State asks this Court to modify the trial court's judgments to show an affirmative deadly weapon finding. In each case, the trial court found that appellant used or exhibited a deadly weapon, a knife, during the commission of the offense when it placed appellant on deferred adjudication community supervision. The judgments adjudicating guilt do not contain the deadly weapon finding. Because the guilty plea and adjudication proceedings are a unitary proceeding, the trial court's judgments should have included the deadly weapon finding. See Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b); Griffith v. State, 166 S.W.3d 261, 265 (Tex.Crim.App. 2005). Therefore, the judgments are incorrect. We sustain the State's cross-point. We modify the trial court's judgments adjudicating guilt to reflect an affirmative finding that appellant used or exhibited a deadly weapon, a knife, during the commission of the offenses. See Tex.R.App.P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex.Crim.App. 1993); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex.App.-Dallas 1991, pet. ref'd). As modified, we affirm the trial court's judgments.
The failure to include the affirmative deadly weapon finding in the judgments does not constitute an arguable issue that counsel should have raised.