Kevin Ray Wingo v. State ( 2015 )

MODIFY and AFFIRM; and Opinion Filed December 1, 2015.
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-15-00591-CR
No. 05-15-00604-CR
KEVIN RAY WINGO, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 204th Judicial District Court
Dallas County, Texas
Trial Court Cause Nos. F13-62425-Q, F15-70088-Q
MEMORANDUM OPINION
Before Justices Bridges, Lang-Miers, and Schenck
Opinion by Justice Schenck
Kevin Ray Wingo was convicted, following the adjudication of his guilt, for aggravated
assault with a deadly weapon involving family violence, and his conviction for delivery of
marijuana in an amount of five pounds or less but more than one-fourth ounce. See TEX. PENAL
CODE ANN. § 22.02(a) (West 2011); TEX. FAM. CODE ANN. § 71.0021, 71.005 (West 2014 &
Supp. 2015); TEX. HEALTH & SAFETY CODE ANN. § 481.120(a), (b)(3) (West 2010). The trial
court assessed punishment on the aggravated assault case at ten years’ imprisonment. In the
marijuana case, the trial court assessed punishment, enhanced by two prior felony convictions, at
ten years’ imprisonment. On appeal, appellant’s attorney filed a brief in which she concludes the
appeals are wholly frivolous and without merit. The brief meets the requirements of Anders v.
California, 386 U.S. 738 (1967). The brief presents 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, 811–12 (Tex. Crim. App. [Panel Op.] 1978). Counsel delivered a copy of the brief to
appellant. We advised appellant of his right to file a pro se response, but he did not file a pro se
response. See Kelly v. State, 436 S.W.3d 313, 319–21 (Tex. Crim. App. 2014) (identifying
duties of appellate courts and counsel in Anders cases).
We have reviewed the record and counsel’s brief. See Bledsoe v. State, 178 S.W.3d 824,
826–27 (Tex. Crim. App. 2005) (explaining appellate court’s duty in Anders cases). We agree
the appeals are frivolous and without merit. We find nothing in the record that might arguably
support the appeals.
Although not an arguable issue, we note there are several errors in the judgments. In
cause no. 05-15-00591-CR, the judgment adjudicating guilt incorrectly omits the “involving
family violence” designation from the offense for which appellant was convicted. The trial court
expressly found the offense involved family violence. Moreover, the judgment adjudicating guilt
incorrectly reflects there was a plea bargain agreement, when, in fact, appellant entered an open
plea of true to the allegations in the motion to adjudicate. Accordingly, we modify the section of
the judgment adjudicating guilt entitled “offense for which defendant convicted” to state
“aggravated assault with deadly weapon involving family violence, and the section entitled
“terms of plea bargain” to state “open.” 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).
-2-
In cause no. 05-15-00604-CR, the judgment incorrectly identifies the statute for the
offense as “481.112 Health and Safety Code.” Appellant was convicted of delivery of marijuana
pursuant to section 481.120 of the Texas Health and Safety Code. See TEX. HEALTH & SAFETY
CODE ANN. § 481.120(a). And, the judgment incorrectly reflects there was a plea bargain
agreement although appellant entered an open guilty plea. Accordingly, we modify the section
of the judgment entitled “statute for offense” to show “481.120 Health and Safety Code,” and the
section entitled “terms of plea bargain” to state “open.” See TEX. R. APP. P. 43.2(b); Bigley, 865
S.W.2d at 27–28; Asberry, 813 S.W.2d at 529–30.
As modified, we affirm the trial court’s judgments.
/David J. Schenck/
DAVID J. SCHENCK
JUSTICE
Do Not Publish
TEX. R. APP. P. 47
150591F.U05
-3-
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
KEVIN RAY WINGO, Appellant Appeal from the 204th Judicial District
Court of Dallas County, Texas (Tr.Ct.No.
No. 05-15-00591-CR V. F13-62425-Q).
Opinion delivered by Justice Schenck,
THE STATE OF TEXAS, Appellee Justices Bridges and Lang-Miers
participating.
Based on the Court’s opinion of this date, the trial court’s judgment adjudicating guilt is
MODIFIED as follows:
The section entitled “Offense for which Defendant Convicted” is modified to show
“Aggravated Assault with Deadly Weapon Involving Family Violence.”
The section entitled “Terms of Plea Bargain” is modified to show “Open.”
As modified, we AFFIRM the trial court’s judgment adjudicating guilt.
Judgment entered December 1, 2015.
-4-
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
KEVIN RAY WINGO, Appellant Appeal from the 204th Judicial District
Court of Dallas County, Texas (Tr.Ct.No.
No. 05-15-00604-CR V. F15-70088-Q).
Opinion delivered by Justice Schenck,
THE STATE OF TEXAS, Appellee Justices Bridges and Lang-Miers
participating.
Based on the Court’s opinion of this date, the trial court’s judgment is MODIFIED as
follows:
The section entitled “Statute for Offense” is modified to show “481.120 Health and
Safety Code.”
The section entitled “Terms of Plea Bargain” is modified to show “Open.”
As modified, we AFFIRM the trial court’s judgment.
Judgment entered December 1, 2015.
-5-