Albert Ray Ford Bacy AKA Albert Ray FordBacy v. State

• Court: Court of Appeals of Texas
• Decided: August 26, 2019
• Docket: 02-18-00168-CR
• Status: Published

Opinion

In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________

No. 02-18-00167-CR No. 02-18-00168-CR ___________________________

ALBERT RAY FORD BACY AKA ALBERT RAY FORDBACY, Appellant

V.

THE STATE OF TEXAS

On Appeal from the 372nd District Court Tarrant County, Texas Trial Court No. 1449929D, 1526355D

Before Gabriel, Kerr, and Womack, JJ. Memorandum Opinion by Justice Womack MEMORANDUM OPINION

Appellant Albert Ray Ford Bacy appeals his convictions for aggravated sexual

assault of a child under the age of seventeen and failure to comply with sexual

offender registration requirements. See Tex. Penal Code Ann. § 22.011(a)(2); Tex.

Code Crim. Proc. Ann. art. 62.102(a). We will affirm the trial court’s judgment related

to the aggravated sexual assault of a child. We will modify the failure-to-comply

judgment to reflect the proper statute and affirm that judgment as modified.

After the State charged Bacy with three counts of sexual assault of a child

under the age of seventeen, the State and Bacy agreed to a charge bargain wherein the

State waived two of the three counts in exchange for Bacy’s plea of guilty to the

remaining count. Sentencing was left to the trial court, which deferred adjudication

and placed Bacy on community supervision for ten years. Under the terms of his

community supervision, Bacy was required to comply with sexual offender

registration requirements. Bacy did not comply, and the State filed a petition to

proceed to adjudication. In addition, the State obtained an indictment charging Bacy

with the offense of failure to comply with sexual offender requirements.

The trial court held a hearing regarding both the State’s petition to proceed to

adjudication and on the newly indicted charge, wherein Bacy pleaded true to three of

the State’s allegations in the petition and guilty to the failure-to-comply charge. The

trial court sentenced Bacy to eight years’ confinement regarding the adjudicated sexual

2 assault charge and three years’ confinement regarding the failure-to-comply charge

and ordered the sentences to run concurrently. This appeal followed.

Bacy’s court-appointed appellate counsel has filed a motion to withdraw as

counsel and a brief in support of that motion. Counsel’s brief and motion meet the

requirements of Anders v. California by presenting a professional evaluation of the

record demonstrating why there are no arguable grounds for relief. 386 U.S. 738,

87 S. Ct. 1396 (1967). In compliance with Kelly v. State, counsel notified Bacy of his

motion to withdraw, provided him a copy of the brief, informed him of his right to

file a pro se response, informed him of his pro se right to seek discretionary review

should this court hold the appeal is frivolous, and took concrete measures to facilitate

Bacy’s review of the appellate record. See 436 S.W.3d 313, 319 (Tex. Crim. App.

2014). This court afforded Bacy the opportunity to file a brief on his own behalf, but

he did not do so.

As the reviewing court, we must conduct an independent evaluation of the

record to determine whether counsel is correct in determining that the appeal is

frivolous. See Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991); Mays v.

State, 904 S.W.2d 920, 923 (Tex. App.—Fort Worth 1995, no pet.). Only then may we

grant counsel’s motion to withdraw. See Penson v. Ohio, 488 U.S. 75, 82–83, 109 S. Ct.

346, 351 (1988).

We have carefully reviewed the record and counsel’s brief. We agree with

counsel that this appeal is wholly frivolous and without merit—we find nothing in the

3 record that arguably might support an appeal. See Bledsoe v. State, 178 S.W.3d 824,

827–28 (Tex. Crim. App. 2005).

In this case, however, we will modify the judgment to reflect the correct statute

for the offense of failure to comply with sexual offender registration requirements.

The trial court’s judgment reflects that the statute of Bacy’s failure-to-comply offense

is Article 62.10 of the Texas Code of Criminal Procedure. But in 2005, Article 62.10

was redesignated as Article 62.102 and amended during the 79th Regular Session of

the Texas Legislature. See Act of May 26, 2005, 79th Leg., R.S., ch. 1008, § 1.01, 2005

Tex. Gen. Laws 3385, 3386, 3407 (current version at Tex. Code Crim. Proc. Ann. art.

62.102). Specifically, Article 62.102(a) defines the offense of failure to comply with

sexual offender registration requirements. Tex. Code Crim. Proc. Ann. art. 62.102(a).

The Texas Rules of Appellate Procedure give this Court authority to modify

judgments to correct errors and make the record speak the truth. Tex. R. App. P.

43.2(b); see French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992); Rhoten v. State,

299 S.W.3d 349, 356 (Tex. App.—Texarkana 2009, no pet.). Therefore, we modify

the failure-to-comply judgment to indicate that the correct statute for the offense of

which Bacy was convicted is Article 62.102(a) of the Texas Code of Criminal

Procedure. See Tex. Code Crim. Proc. Ann. art. 62.102(a).

Accordingly, we grant counsel’s motion to withdraw; we affirm the trial court’s

judgment regarding the aggravated sexual assault of a child under the age of

seventeen; and, as modified, we affirm the trial court’s failure-to-comply judgment.

4 /s/ Dana Womack

Dana Womack Justice

Do Not Publish Tex. R. App. P. 47.2(b)

Delivered: August 26, 2019