Al Dennis Patterson v. THE STATE OF TEXAS ( 2024 )

Abated and Opinion Filed February 7, 2024
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-22-01261-CR
AL DENNIS PATTERSON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 3
Dallas County, Texas
Trial Court Cause No. F16-75323-J
MEMORANDUM OPINION
Before Justices Molberg, Pedersen, III, and Nowell
Opinion by Justice Pedersen, III
Appellant Al Dennis Patterson appeals from the trial court’s revocation of his
deferred adjudication community service and adjudication of his guilt for the offense
of robbery. His attorney has filed a brief in which he concluded this appeal is wholly
frivolous, without merit, and that there are no arguable grounds to advance. See
Anders v. California, 386 U.S. 738 (1967). He has also filed a motion to withdraw
as counsel for appellant. Because we have identified an arguable issue in this record,
we grant counsel’s motion. But we strike his brief and remand for appointment of
new appellate counsel.
Background
Appellant was indicted and charged with robbery. TEX. PENAL CODE ANN.
§ 29.02. On April 27, 2017, he waived his right to a jury trial and entered a plea of
guilty. The trial court deferred adjudication of appellant’s guilt, placed him on
community supervision for four years, and imposed a fine of $1,000.
On October 30, 2020, the State filed its Motion to Revoke Probation or
Proceed with an Adjudication of Guilt (the Motion). The State urged a single
violation of appellant’s conditions of community supervision:
A. The Defendant, Al Dennis Patterson, violated the laws of the State
of Texas in that on or about 06/01/[20]17 in Dallas County, Al Dennis
Patterson, did unlawfully, knowingly and intentionally commit the
offense of AGG SEXUAL ASSAULT CHILD as alleged in cause no.
F207675 I.
Appellant contested the Motion, and the trial court conducted a hearing on
November 11, 2022.
The State called Mikki Lucas, a felony court probation officer with the Dallas
County Adult Probation Department. Lucas testified that she served appellant’s
conditions of community service on him and explained the conditions to him;
appellant signed the conditions at that time. Lucas learned that appellant was arrested
on October 22, 2020, for aggravated sexual assault of a child. She knew that that
offense was resolved by a jury trial on September 2, 2022, and that appellant was
sentenced in that proceeding to fifteen years’ confinement in the Institutional
Division of the Texas Department of Criminal Justice (TDCJ). In response to a
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question on cross examination, she stated that she did not know whether the sexual
assault offense was on appeal.
The State also called Darrell Doty, who is an investigator with the Dallas
County District Attorney’s office and a fingerprint expert. Doty testified that he took
appellant’s fingerprints the day of the revocation hearing and compared them to the
fingerprints on the judgment in the sexual assault case; he concluded the fingerprints
were from the same person. The State asked the court to take judicial notice of its
file and of the probation file.
Appellant offered no testimony, but asked the court to take judicial notice of
its entire file, stressing that it “includ[ed] the notice of appeal” in the sexual assault
case.
Both sides gave brief closing arguments, which we reproduce here:
DEFENSE’S CLOSING ARGUMENT
Yes, Judge. The Court having taken judicial notice that the allegation
of the aggravated sexual abuse of a child is not being a final conviction
being under appeal, we would ask the Court for a finding of not true
and discharge him from probation.
STATE’S CLOSING ARGUMENT
Judge, the burden being preponderance of the evidence, defendant was
convicted in this court on September 2nd, 2020 [sic] of the allegation
that is alleged within the motion to adjudicate in both cases. The State
has belief -- believes that it has met its burden in this case and ask[s]
that the Court find this allegation true.
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The trial court proceeded to adjudication. It found the allegation of violation
of Texas law true, found appellant guilty, and assessed his punishment at seven
years’ confinement in TDJC. This appeal followed.
The Anders Brief
In this Court, appellant’s attorney filed an Anders brief, concluding that the
appeal is wholly frivolous and without merit. Counsel delivered a copy of the brief
to appellant, informed appellant of his right to review the record, informed him of
the right to file a brief or other response on his own behalf, and informed him of his
right to pursue a petition for discretionary review in the Texas Court of Criminal
Appeals if we deny him relief on appeal. We also advised appellant of his right to
file a pro se response, but he did not file one. See Kelly v. State, 436 S.W.3d 313,
319–21 (Tex. Crim. App. 2014) (noting appellant has right to file pro se response to
Anders brief filed by counsel). The State’s attorney made an appearance but did not
file any response to the Anders brief.
When filing an Anders brief, counsel’s obligation is to assure this Court “that,
after thorough investigation and research, his request [to withdraw] is well founded.”
In re Schulman, 252 S.W.3d 403, 407 (Tex. Crim. App. 2008). The brief should refer
to anything in the record that might arguably support an appeal and include
appropriate record references and citations to authority. High v. State, 573 S.W.2d
807, 811 (Tex. Crim. App. 1978). If we conclude “either that appellate counsel has
not adequately discharged [his] constitutional duty to review the record for any
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arguable error, or that the appeal is not wholly frivolous, notwithstanding appellate
counsel’s efforts,” we must abate the appeal and return the cause to the trial court
for the appointment of new appellate counsel. Meza v. State, 206 S.W.3d 684, 689
(Tex. Crim. App. 2006); see also Crowe v. State, 595 S.W.3d 317, 319 (Tex. App.—
Dallas 2020, no pet.).
We have reviewed the record carefully. See Bledsoe v. State, 178 S.W.3d 824,
826–27 (Tex. Crim. App. 2005) (explaining appellate court’s duty in Anders cases).
That review has raised concerns as to whether appointed counsel has met his
obligations under Anders and High.
To begin, the focus of counsel’s legal argument in this case is appellant’s 2017
plea proceeding rather than the revocation proceeding. Texas law generally
precludes appealing issues relating to the original proceeding in a revocation appeal.
See Manuel v. State, 994 S.W.2d 658, 661–62 (Tex. Crim. App. 1999) (defendant
placed on deferred adjudication community supervision may raise issues relating to
original plea proceeding only in appeals taken when deferred adjudication
community supervision is first imposed). Moreover, our review of the record
establishes that the exception to the Manuel rule for void judgments does not apply
here. See Nix v. State, 65 S.W.3d 664, 667 (Tex. Crim. App. 2001). Accordingly, we
do not address the 2017 proceeding in this opinion.
Counsel addresses the actual revocation proceeding briefly under the heading
“Sentencing.” The brief relates that after considering all the evidence brought
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forward at the revocation hearing, the trial court ruled that appellant violated “term
A” of the conditions of his community service and imposed punishment of seven
years’ incarceration, which is within the statutory limit for the offense of robbery.
Counsel then concludes “there is no basis for reversal of appellant’s sentence” given
the trial court’s discretion in determining appropriate punishment.
Counsel does not address at any point the issue raised by appellant’s trial
counsel concerning the fact that the sexual assault conviction was not final at the
time of revocation.1 Without reaching the merits of that issue, we conclude that it
was raised and preserved; it is, at a minimum, an arguable issue.
In addition, our review of the record has identified a clerical error in
appellant’s judgment. The judgment erroneously states that appellant pleaded
“TRUE” to the Motion. We may correct and modify the judgment of a trial court in
an Anders case to make the record speak the truth when we have the necessary data
and information to do so. See Crowe, 595 S.W.3d at 320 n.5. The record establishes
that appellant contested the Motion. However, given our resolution of the appeal, we
do not reform the judgment at this time; we trust that new appellate counsel will
address this and any other clerical error that requires reformation of the judgment.
See id.
1
We note that the sexual assault case—numbered F20-7675I in the trial court and 05-22-01303-CR
on appeal—remains pending in this Court as of the date of this opinion.
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We are not satisfied that the brief filed by appointed counsel is based upon the
type of review envisioned by Anders, i.e., a conscientious and thorough review of
the law and facts. Accordingly, we grant appointed counsel’s motion to withdraw
and strike his Anders brief. We remand the case to the trial court and order the trial
court to appoint new appellate counsel to represent appellant. New appellate counsel
should investigate the record and file a brief on the merits that addresses the issue of
using a non-final conviction to prove a violation of condition A, the error in the
judgment, and any other plausible grounds for appeal. See id. at 321.
We further order the trial court to inform this Court in writing of the identity
of new appellate counsel, new appellate counsel’s contact information, and the date
counsel is appointed.
We remove this appeal from the submission docket and abate the appeal for
the trial court to comply with the dictates of this opinion.
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Conclusion
We grant counsel’s motion to withdraw. We strike the Anders brief, and we
remand this case for appointment of new appellate counsel.
221261f.u05 /Bill Pedersen, III//
Do Not Publish BILL PEDERSEN, III
TEX. R. APP. P. 47 JUSTICE
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