Gerrick Anthony Hawthorne v. the State of Texas ( 2021 )

AFFIRMED as MODIFIED and Opinion Filed June 16, 2021
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-19-01201-CR
GERRICK ANTHONY HAWTHORNE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 7
Dallas County, Texas
Trial Court Cause No. F-1952867-Y
MEMORANDUM OPINION
Before Justices Schenck, Reichek, and Carlyle
Opinion by Justice Reichek
Gerrick Hawthorne appeals his conviction for aggravated assault with a
deadly weapon. The incident giving rise to the charge involved appellant threatening
the complainant with a knife while she was pregnant with their child. Appellant
pleaded not guilty to the offense and not true to an alleged prior offense submitted
by the State for punishment enhancement purposes. Following a jury trial on both
guilt/innocence and punishment, the jury found appellant guilty of the offense as
alleged in the indictment and found the enhancement allegation to be true.
Punishment was assessed at ten years in prison.
On appeal, appellant’s court-appointed appellate counsel has filed a brief in
which she concludes there are no arguable points of error and the appeal is wholly
frivolous and without merit. She has also filed an accompanying motion to withdraw
as appointed counsel. When an appellate court receives an Anders brief asserting no
arguable grounds for appeal exist, we must determine that issue independently by
conducting our own review of the record. See Anders v. California, 386 U.S. 738,
744 (1967) (emphasizing that the reviewing court, and not appointed counsel,
determines, after full examination of proceedings, whether the case is “wholly
frivolous”); Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991)
(quoting Anders). If we conclude, after conducting an independent review, that
“appellate counsel has exercised professional diligence in assaying the record for
error” and agree the appeal is frivolous, we should grant counsel’s motion to
withdraw and affirm the trial court’s judgment. In re Schulman, 252 S.W.3d 403,
409 (Tex. Crim. App. 2008); Meza v. State, 206 S.W.3d 684, 689 (Tex. Crim. App.
2006).
The brief before us meets the requirements of Anders. It presents a
professional evaluation of the record showing why there are no arguable grounds to
advance. See High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. [Panel Op.]
1978) (determining whether brief meets requirements of Anders). We advised
appellant by letter of his right to file a pro se response and appellant responded by
filing a pro se brief. See Kelly v. State, 436 S.W.3d 313, 319–21 (Tex. Crim. App.
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2014) (appellant has right to file pro se response to Anders brief filed by counsel).
After reviewing appellant’s brief and the record, we conclude the brief presents no
arguable grounds to advance. See Bledsoe v. State, 178 S.W.3d 824, 827 (Tex. Crim.
App. 2005).
Although not an arguable issue, we note that the trial court’s judgment does
not reflect (1) appellant’s plea of “not true” to the enhancement allegation in the
indictment, (2) the jury’s finding of “true” to the enhancement allegation, or (3) the
trial court’s affirmative finding of family violence. This Court has the power to
modify a judgment to make the record speak the truth when we have the necessary
information before us to do so. See TEX. R. APP. P. 43.2(b); Bigley v. State, 865
S.W.2d 26, 28 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529–30
(Tex. App.–Dallas 1991, pet. ref’d). Thus, on our own motion, we modify the trial
court’s judgment in the following manner: (1) in the space provided for “1st
Enhancement Paragraph,” we delete “N/A” and replace it with “Pleaded Not True;”
(2) in the space provided for “Finding on 1st Enhancement Paragraph,” we delete
“N/A” and replace it with “True;” and (3) in the portion of the judgment for “special
findings or orders,” we add the language “THE COURT MAKES AN
AFFIRMATIVE FINDING OF FAMILY VIOLENCE.” We grant counsel’s motion
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to withdraw and, as modified, we affirm the trial court’s judgment.
/Amanda L. Reichek/
AMANDA L. REICHEK
JUSTICE
Do Not Publish
TEX. R. APP. P. 47.2(b)
191201F.U05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
GERRICK ANTHONY On Appeal from the Criminal District
HAWTHORNE, Appellant Court No. 7, Dallas County, Texas
Trial Court Cause No. F-1952867-Y.
No. 05-19-01201-CR V. Opinion delivered by Justice
Reichek. Justices Schenck and
THE STATE OF TEXAS, Appellee Carlyle participating.
Based on the Court’s opinion of this date, the judgment of the trial court is
MODIFIED as follows:
(1) in the space provided for “1st Enhancement Paragraph,” the term
“N/A” is deleted and replaced with “Pleaded Not True;” (2) in the
space provided for “Finding on 1st Enhancement Paragraph,” the term
“N/A” is deleted and replaced with “True;” and (3) in the portion of
the judgment for “special findings or orders,” the language “THE
COURT MAKES AN AFFIRMATIVE FINDING OF FAMILY
VIOLENCE” is added.
As REFORMED, the judgment is AFFIRMED.
Judgment entered June 16, 2021
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