Gavin Scott Kerr v. State ( 2018 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-17-00241-CR
No. 07-17-00242-CR
GAVIN SCOTT KERR, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 181st District Court
Randall County, Texas
Trial Court No. 26,716-B Counts I and II, Honorable John B. Board, Presiding
October 30, 2018
MEMORANDUM OPINION
Before QUINN, C.J., and CAMPBELL and PARKER, JJ.
On February 6, 2017, appellant, Gavin Scott Kerr, pled guilty pursuant to a plea
bargain on both counts of an indictment alleging that he had committed the offenses of
burglary of a building1 and possession of a controlled substance, penalty group two, in an
amount less than one gram.2 In compliance with the plea bargain, the trial court deferred
1 See TEX. PENAL CODE ANN. § 30.02(a)(3) (West Supp. 2018).
2 See TEX. HEALTH & SAFETY CODE ANN. § 481.116(a), (b) (West 2017).
adjudication of guilt and placed appellant on community supervision for a period of three
years and assessed a $2,000 fine. On May 16, 2017, the State filed a motion to proceed
to adjudication alleging that appellant had committed six violations of the terms and
conditions of his community supervision. At a hearing on the motion held on June 28,
2017, the State waived the first three alleged violations and appellant pled true to the
three remaining violations alleged by the State. After hearing punishment evidence, the
trial court sentenced appellant on each count to twenty-four months’ incarceration in a
state jail facility. The trial court also reassessed the original $2,000 fine. Appellant timely
filed notice of appeal. In presenting this appeal, appellant’s counsel has filed an Anders3
brief in support of a motion to withdraw. We grant counsel’s motion, modify the judgment,
and affirm the judgment as modified.
In support of her motion to withdraw, counsel certifies that she has diligently
reviewed the record and, in her opinion, the record reflects no reversible error upon which
an appeal can arguably be predicated. Id. at 744; In re Schulman, 252 S.W.3d 403, 406
(Tex. Crim. App. 2008). In compliance with High v. State, 573 S.W.2d 807, 813 (Tex.
Crim. App. [Panel Op.] 1978), counsel has discussed why, under the controlling
authorities, there are no reversible errors in the trial court’s judgments. Counsel notified
appellant by letter of her motion to withdraw; provided appellant a copy of the motion,
Anders brief, and the appellate record; and informed him of his right to file a pro se
response. See Kelly v. State, 436 S.W.3d 313, 319-20 (Tex. Crim. App. 2014) (specifying
appointed counsel’s obligations on the filing of a motion to withdraw supported by an
Anders brief). By letter, this Court also advised appellant of his right to file a pro se
3 See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967).
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response to counsel’s Anders brief. Appellant did not file a pro se response. The State
did not file a brief.
By her Anders brief, counsel discusses six areas of the motion to proceed to
adjudication process where reversible error may have occurred but concludes that the
appeal is frivolous. We have independently examined the record to determine whether
there are any non-frivolous issues that were preserved in the trial court which might
support this appeal but, like counsel, we have found no such issues. See Penson v. Ohio,
488 U.S. 75, 80, 109 S. Ct. 346, 102 L. Ed. 2d 300 (1988); In re Schulman, 252 S.W.3d
at 409; Gainous v. State, 436 S.W.2d 137, 138 (Tex. Crim. App. 1969).
In the present case, appellant pled guilty to the original allegations and was placed
on deferred adjudication community supervision. Appellant did not appeal the trial court’s
deferral of adjudication. At the June 28, 2017 hearing, appellant pled true to three of the
violations alleged by the State in its motion to proceed to adjudication. A plea of “true” to
any of the alleged violations contained in the State’s motion to proceed is sufficient to
support the trial court’s order revoking community supervision. Maddox v. State, No. 02-
08-00020-CR, 2009 Tex. App. LEXIS 595, at *10 (Tex. App.—Fort Worth Jan. 29, 2009,
no pet.) (mem. op., not designated for publication) (citing Atchison v. State, 124 S.W.3d
755, 758 n.4 (Tex. App.—Austin 2003, pet. ref’d), Moore v. State, 11 S.W.3d 495, 498
n.1 (Tex. App.—Houston [14th Dist.] 2000, no pet.), and Wilkerson v. State, 731 S.W.2d
752, 753 (Tex. App.—Fort Worth 1987, no pet.)).
However, as raised by appointed counsel, the judgments for both counts state that
appellant “violated the terms and conditions of community supervision as set out in the
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State’s ORIGINAL Motion to Adjudicate Guilt as follows: PARAGRAPHS 1-6.” But, the
reporter’s record reflects that the State waived its allegations contained in paragraphs
one, two, and three. We are authorized to modify an incorrect judgment when the
evidence necessary to correct it appears in the record. Weatherly v. State, No. 07-16-
00189-CR, 2017 Tex. App. LEXIS 3084, at *4-5 (Tex. App.—Amarillo Mar. 31, 2017, no
pet.) (mem. op., not designated for publication) (citing TEX. R. APP. P. 43.2(b), Bigley v.
State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993), and Asberry v. State, 813 S.W.2d
526, 529 (Tex. App.—Dallas 1991, pet. ref’d)).
After carefully reviewing the appellate record and counsel’s brief, we conclude
there are no plausible grounds for reversal. However, we reform the portion of the
judgments to reflect that appellant violated the terms and conditions of his community
supervision as alleged in paragraphs four through six of the State’s Original Motion to
Adjudicate Guilt. As modified, we affirm the trial court’s judgment and grant counsel’s
motion to withdraw.4 See TEX. R. APP. P. 43.2(b).
Judy C. Parker
Justice
Do not publish.
4 Even though appellant was informed of his right to file a pro se petition for discretionary review
upon execution of the Trial Court’s Certification of Defendant’s Right of Appeal, counsel must comply with
Rule 48.4 of the Texas Rules of Appellate Procedure, which provides that counsel shall within five days
after this opinion is handed down, send appellant a copy of the opinion and judgment together with
notification of his right to file a pro se petition for discretionary review. In re Schulman, 252 S.W.3d at 408
n.22 & 411 n.35. This duty is an informational one, not a representational one. It is ministerial in nature,
does not involve legal advice, and exists after the court of appeals has granted counsel’s motion to
withdraw. Id. at 411 n.33.
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