Darius Keonte Smith v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: July 7, 2022
• Docket: 05-21-00589-CR
• Status: Published

Opinion

Affirmed and Opinion Filed July 7, 2022

In The Court of Appeals Fifth District of Texas at Dallas No. 05-21-00568-CR No. 05-21-00569-CR No. 05-21-00589-CR

DARIUS KEONTE SMITH, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the Criminal District Court No. 1 Dallas County, Texas Trial Court Cause Nos. F17-70985-H, F17-39554-H, F18-70008-H

MEMORANDUM OPINION Before Justices Partida-Kipness, Pedersen, III, and Nowell Opinion by Justice Pedersen, III Appellant Darius Keonte Smith was indicted and charged with three offenses:

assault causing bodily injury/family violence enhanced and two cases of aggravated

assault with a deadly weapon. In August 2018, appellant waived his right to a jury

trial and pleaded guilty in each case pursuant to plea-bargain agreements with the

State. The trial court followed the plea agreements, deferred adjudication of

appellant’s guilt, and placed him on community supervision for four years. In October 2019, the State filed its Amended Motion to Revoke Probation or

Proceed with an Adjudication of Guilt (the Motion) in all three cases. The Motion

alleged a dozen violations of the terms of appellant’s community service, including

commission of the offenses of theft of a firearm and unlawful possession of a

firearm.

The Motion was heard on March 6, 2020. At that hearing, appellant was

properly admonished in writing and orally, he entered an open plea of true to the

allegations in the Motion, and he confirmed that he was entering that plea freely and

voluntarily. Appellant’s signed judicial confessions to each charge were entered into

evidence. Appellant testified and was cross-examined. And at the end of the

adjudication hearing, the trial court granted the State’s Motion and adjudicated

appellant’s guilt in all three cases. The court assessed appellant’s punishment at five

years’ confinement in the assault causing bodily injury/family violence enhanced

case and ten years’ confinement in each of the aggravated assault with a deadly

weapon cases. All the sentences were to run concurrently. This appeal followed.

In this Court, appellant’s attorney has filed a brief in each numbered case, in

which he concludes the appeal is wholly frivolous and without merit. The briefs meet

the requirements of Anders v. California, 386 U.S. 738 (1967). The briefs present 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, 812 (Tex. Crim. App. [Panel

Op.] 1978) (determining whether brief meets requirements of Anders). Counsel

–2– delivered a copy of the briefs to appellant. The State filed a letter response, in which

it agreed with appellant’s counsel that the appeal is without merit. We advised

appellant of his right to file a pro se response, but he did not file a response. 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).

We have reviewed the record and counsel’s briefs. 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 that the appeal is frivolous and without merit. We find

nothing in the record that might arguably and substantively support the appeal of any

of the three judgments.

The State does ask us to make a clerical modification to the trial court’s

judgment in the assault causing bodily injury/family violence enhanced case,

because section 22.01 of the Texas Penal Code—the statute that the judgment cites

for appellant’s offense in the case—is not the most accurate statute to describe the

offense for which appellant was convicted. Section 22.01 of the penal code governs

assault offenses in general. TEX. PENAL CODE ANN. § 22.01. The State points out

that subsection 22.01(b)(2)(A) provides more specifically that an offense under

section 22.01 is a third-degree felony and includes the additional element of a

previous conviction for family violence. The State contends that subsection

22.01(b)(2)(A) describes the offense for which appellant was convicted, governs the

offense, and must be included in the judgment. We agree. See TEX. CODE CRIM.

–3– PROC. ANN. art. 42.01 § 1 (“The judgment shall reflect . . . 13. The offense or

offenses for which the defendant was convicted; 14. The date of the offense or

offenses and degree of offense for which the defendant was convicted.).

This Court has the power to correct and modify the judgments of the court

below to make the record speak the truth when it has the necessary information to

do so. 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). We modify the judgment in appellate case number 05-21-00569-

CR: under the heading “Statute for Offense,” we remove the general statutory

reference to “22.02 Penal Code,” and replace it with the specific statutory provision

that governs appellant’s offense in this case, “22.01(b)(2)(A) Penal Code.”

We affirm the trial court’s judgments in appellate cases 05-21-00568-CR and

05-21-00589. As modified we affirm the trial court’s judgment in appellate case 05-

21-00569-CR.

210568f.u05 210569f.u05 210589f.u05 Do Not Publish /Bill Pedersen, III// TEX. R. APP. P. 47 BILL PEDERSEN, III JUSTICE

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

DARIUS KEONTE SMITH, On Appeal from the Criminal District Appellant Court No. 1, Dallas County, Texas Trial Court Cause No. F17-70985-H. No. 05-21-00568-CR V. Opinion delivered by Justice Pedersen, III. Justices Partida- THE STATE OF TEXAS, Appellee Kipness and Nowell participating.

Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered this 7th day of July, 2022.

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

DARIUS KEONTE SMITH, On Appeal from the Criminal District Appellant Court No. 1, Dallas County, Texas Trial Court Cause No. F17-39554-H. No. 05-21-00569-CR V. Opinion delivered by Justice Pedersen, III. Justices Partida- THE STATE OF TEXAS, Appellee Kipness and Nowell participating.

Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED as follows:

under the heading “Statute for Offense,” we remove the general statutory reference to “22.02 Penal Code,” and replace it with the specific statutory provision that governs appellant’s offense in this case, “22.01(b)(2)(A) Penal Code.”

As modified, the trial court’s judgment is AFFIRMED.

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

DARIUS KEONTE SMITH, On Appeal from the Criminal District Appellant Court No. 1, Dallas County, Texas Trial Court Cause No. F18-70008-H. No. 05-21-00589-CR V. Opinion delivered by Justice Pedersen, III. Justices Partida- THE STATE OF TEXAS, Appellee Kipness and Nowell participating.

Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

–7–