Akeashya Kari Thomas v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: June 16, 2022
• Docket: 05-21-00247-CR
• Status: Published

Opinion

Modified and Affirmed and Opinion Filed June 16, 2022

In The Court of Appeals Fifth District of Texas at Dallas No. 05-21-00247-CR

AKEASHYA KARI THOMAS, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 196th District Court Hunt County, Texas Trial Court Cause No. 31768

MEMORANDUM OPINION Before Justices Partida-Kipness, Pedersen, III, and Nowell Opinion by Justice Nowell

Akeashya Kari Thomas pleaded guilty to the offense of injury to a child with

intent to cause bodily injury. The trial court deferred a finding of guilt and placed

appellant on deferred adjudication community supervision for five years. The State

filed a motion to revoke, alleging violations of four conditions of appellant’s

community supervision. The trial court adjudicated appellant guilty of the offense,

revoked appellant’s community supervision, sentenced her to ten years in the Texas

Department of Criminal Justice, Institutional Division, suspended the sentence, and

placed her on community supervision for five years. On appeal, appellant’s attorney filed a brief concluding the appeal is wholly

frivolous and without merit. See Anders v. California, 386 U.S. 738 (1967).

Appellant filed a pro se response that we interpret as arguing ineffective assistance

of counsel.

The Court of Criminal Appeals has held that when a court of appeals receives

an Anders brief and a pro se response, the reviewing court has two choices. Bledsoe

v. State, 178 S.W.3d 824, 826 (Tex. Crim. App. 2005). After conducting an

independent examination of the record, the appellate court “may determine that the

appeal is wholly frivolous and issue an opinion explaining that it has reviewed the

record and finds no reversible error. Or it may determine that arguable grounds for

appeal exist and remand the cause to the trial court so that new counsel may be

appointed to brief the issues.” Id. at 826-27 (internal citation omitted). The appellate

court does not address the merits of each claim raised in an Anders brief or in a pro

se response when it has determined there are no arguable grounds for review. Id. at

827.

We independently reviewed the entire record in this appeal, including the

issue raised in appellant’s pro se response. We conclude that no reversible error

exists in the record, there are no arguable grounds for review, and, therefore, the

appeal is wholly frivolous. See Anders, 386 U.S. at 744 (reviewing court, and not

counsel, determines—after full examination of proceedings—whether appeal is

–2– wholly frivolous); Garner v. State, 300 S.W.3d 763, 767 (Tex. Crim. App. 2009)

(reviewing court must determine whether arguable grounds for appeal exist).

Although not an arguable issue, the trial court’s judgment incorrectly states

appellant pleaded “not true” to paragraph 2 of the State’s motion to adjudicate. The

record shows appellant pleaded “true” to paragraph 2 of the motion to adjudicate.

Appellate courts may modify a trial court’s judgment and affirm it as

modified. See TEX. R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27–28 (Tex.

Crim. App. 1993). This Court “has the power to correct and reform the judgment of

the court below to make the record speak the truth when it has the necessary data

and information to do so.” Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.—

Dallas 1991, writ ref’d). Appellate courts may reform trial court judgments where

“the evidence necessary to correct the judgment appears in the record.” Id.

Accordingly, we modify the section of the judgment titled “Plea to Motion to

Adjudicate” to read “True to Paragraph 2 and Not True to Paragraph 3.”

As modified, we affirm the trial court’s judgment.

/Erin A. Nowell// ERIN A. NOWELL JUSTICE

210247f.u05 Do Not Publish TEX. R. APP. P. 47.2(b)

–3– Court of Appeals Fifth District of Texas at Dallas JUDGMENT

AKEASHYA KARI THOMAS, On Appeal from the 196th District Appellant Court, Hunt County, Texas Trial Court Cause No. 31768. No. 05-21-00247-CR V. Opinion delivered by Justice Nowell. Justices Partida-Kipness and THE STATE OF TEXAS, Appellee Pedersen, III participating.

Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED as follows: We MODIFY the section of the judgment titled “Plea to Motion to Adjudicate” to read “True to Paragraph 2 and Not True to Paragraph 3.”

As REFORMED, the judgment is AFFIRMED.

Judgment entered this 16th day of June, 2022.

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