James Hayhurst v. State ( 2019 )

Opinion issued February 26, 2019
In The
Court of Appeals
For The
First District of Texas
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NO. 01-18-00412-CR
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JAMES HAYHURST, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 230th District Court
Harris County, Texas
Trial Court Case No. 1551007
MEMORANDUM OPINION
Appellant, James Hayhurst, pleaded guilty to the offense of aggravated assault
against a public servant. See TEX. PENAL CODE § 22.02(b)(2). In accordance with
appellant’s plea-bargain agreement with the State, the trial court found sufficient
evidence to find appellant guilty, but deferred making any finding regarding
appellant’s guilt and placed appellant on community supervision for a period of five
years. The State subsequently filed a motion to adjudicate appellant’s guilt, alleging
three violations of the terms of appellant’s community supervision. Appellant
pleaded “true” to one of the alleged violations and pleaded “not true” to the other
two violations. The trial court found two of the allegations true, adjudicated
appellant guilty, and sentenced appellant to seventeen years’ imprisonment.
Appellant timely filed a notice of appeal.
Appellant’s appointed counsel on appeal has filed a motion to withdraw, along
with an Anders brief stating that the record presents no reversible error and that,
therefore, the appeal is without merit and is frivolous. See Anders v. California, 386
U.S. 738 (1967). Counsel’s brief meets the Anders requirements by presenting a
professional evaluation of the record and supplying this Court with references to the
record and legal authority. See id. at 744; see also High v. State, 573 S.W.2d 807,
812 (Tex. Crim. App. 1978). Counsel indicates that he has thoroughly reviewed the
record and that he is unable to advance any grounds of error that warrant reversal.
See Anders, 386 U.S. at 744; Mitchell v. State, 193 S.W.3d 153, 155 (Tex. App.—
Houston [1st Dist.] 2006, no pet.).
Appellant’s counsel certified that he delivered a copy of the motion to
withdraw and Anders brief to appellant and informed appellant of his right to file a
pro se response. See In re Schulman, 252 S.W.3d 403, 408 (Tex. Crim. App. 2008).
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Furthermore, counsel certified that he sent appellant the form motion for pro se
access to the records for his response. See Kelly v. State, 436 S.W.3d 313, 322 (Tex.
Crim. App. 2014). Appellant did not file a pro se response.
We have independently reviewed the entire record in this appeal, and we
conclude that no reversible error exists in the record, that there are no arguable
grounds for review, and that therefore the appeal is frivolous. See Anders, 386 U.S.
at 744 (emphasizing that reviewing court—and not counsel—determines, after full
examination of proceedings, whether appeal is wholly frivolous); Garner v. State,
300 S.W.3d 763, 767 (Tex. Crim. App. 2009) (reviewing court must determine
whether arguable grounds for review exist); Bledsoe v. State, 178 S.W.3d 824, 826–
28 (Tex. Crim. App. 2005) (reviewing court is not to address merits of each claim
raised in Anders brief or pro se response after determining there are no arguable
grounds for review); Mitchell, 193 S.W.3d at 155. An appellant may challenge a
holding that there are no arguable grounds for appeal by filing a petition for
discretionary review in the Texas Court of Criminal Appeals. See Bledsoe, 178
S.W.3d at 827 n.6.
Although not an arguable issue, we note the trial court’s judgment does not
accurately reflect the proceedings in two respects. First, at the hearing to adjudicate
guilt, appellant pleaded true to one of the State’s three allegations: the allegation that
he violated the terms of his supervision by leaving Harris County without
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permission. But the judgment states that appellant pleaded not true to the allegations
in the motion to adjudicate. Second, in its oral pronouncement at the hearing, the
trial court found two alleged violations in the State’s motion to adjudicate guilt to be
true: (1) the State’s allegation that appellant committed a new law violation by
violating a protective order and (2) the State’s allegation that appellant left Harris
County without permission. The judgment, however, only includes a finding that
appellant committed a new law violation. We have the authority to reform 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, 27–
28 (Tex. Crim. App. 1993); French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App.
1992); Nolan v. State, 39 S.W.3d 697, 698 (Tex. App.–Houston [1st Dist.] 2001, no
pet.). Accordingly, we modify the trial court’s judgment to reflect that (1) the trial
court found the State’s allegation that appellant violated the condition that he
“Remain within Harris County, Texas or any counties directly touching Harris
County, Texas” to be true and (2) appellant pleaded true to this alleged violation.
Accordingly, we affirm the judgment of the trial court as modified and grant
counsel’s motion to withdraw.1 See TEX. R. APP. P. 43.2(a). Attorney Rick Oliver
must immediately send the required notice and file a copy of that notice with the
1
Appointed counsel still has a duty to inform appellant of the result of this
appeal and that he may, on his own, pursue discretionary review in the Texas
Court of Criminal Appeals. See Bledsoe, 178 S.W.3d at 826–27.
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Clerk of this Court. See TEX. R. APP. P. 6.5(c). We dismiss any other pending
motions as moot.
PER CURIAM
Panel consists of Chief Justice Radack and Justices Goodman and Countiss.
Do not publish. TEX. R. APP. P. 47.2(b).
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