David Boima Hoff v. the State of Texas

Opinion

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

No. 02-21-00055-CR ___________________________

DAVID BOIMA HOFF, Appellant

V.

THE STATE OF TEXAS

On Appeal from the 372nd District Court Tarrant County, Texas Trial Court No. 1449644D

Before Birdwell, Bassel, and Womack, JJ. Memorandum Opinion by Justice Womack MEMORANDUM OPINION

Appellant David Boima Hoff appeals from the trial court’s adjudication of his

guilt and sentence of twenty years’ confinement. We agree with Hoff’s court-

appointed appellate counsel that this appeal is meritless as to the conviction and

sentence. We will, however, modify the trial court’s judgment to show that Hoff

pleaded not true to the paragraphs heard on the State’s first amended petition to

proceed to adjudication. We therefore affirm the trial court’s judgment as modified.

Under the terms of a plea bargain, Hoff pleaded guilty to the offense of

aggravated sexual assault of an elderly or disabled person. See Tex. Penal Code Ann.

§ 22.021(a)(2)(c). Pursuant to the terms of the plea bargain, the trial court deferred

adjudication and placed Hoff on community supervision for five years. During the

period of Hoff’s community supervision, the State filed a petition to proceed to

adjudication and a first amended petition to proceed to adjudication. In its first

amended petition to proceed to adjudication, the State alleged in five paragraphs that

Hoff had violated five conditions of his community supervision: (1) he committed a

new offense by not registering as a sex offender; (2) he failed to report to the Tarrant

County Community Supervision and Corrections Department (CSCD) during the

months of April 2017 through February 2020; (3) he failed to successfully complete a

sex-offender treatment program; (4) he changed his address without timely notifying

CSCD; and (5) he left Tarrant County without authorization from the trial court or

CSCD.

2 At the hearing on the State’s petition, the State waived paragraph one, and Hoff

entered a plea of not true to paragraphs two through five. The trial court found the

allegations in paragraphs two through five to be true, and it then adjudicated Hoff

guilty of aggravated sexual assault of an elderly or disabled person and sentenced him

to twenty years’ confinement. Hoff appealed.

Hoff’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. See 386 U.S. 738,

744, 87 S. Ct. 1396, 1400 (1967). In compliance with Kelly v. State, counsel notified

Hoff of the motion to withdraw, provided him with a copy of the Anders brief,

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

discretionary review should this court hold the appeal is frivolous, and took concrete

measures to facilitate his review of the appellate record. See 436 S.W.3d 313, 319

(Tex. Crim. App. 2014). Hoff filed multiple pro se responses.1 The State filed two

letters with our court responding to counsel’s Anders brief and to Hoff’s pro se

responses, agreeing with counsel’s assessment that this appeal is frivolous.

After an appellant’s court-appointed counsel files a motion to withdraw on the

ground that the appeal is frivolous and fulfills the requirements of Anders, this court

1 In his responses, Hoff argues that he is innocent of the underlying sexual- assault charge despite his plea of guilty to that charge.

3 must independently examine the record to see if any arguable ground may be raised

on his behalf. See Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991). We

also consider the briefs and any pro se response. See In re Schulman, 252 S.W.3d 403,

408–09 (Tex. Crim. App. 2008) (orig. proceeding). Only after we conduct our own

examination to determine whether counsel has correctly assessed the case 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 counsel’s brief, Hoff’s pro se responses, the State’s

letters, and the records in this case. We note that in his Anders brief, counsel requests

that the trial court’s judgment be modified because the judgment incorrectly reflects

that Hoff pleaded true to the allegations in the State’s petition despite Hoff’s pleading

not true to the allegations at the hearing. In its letters to our court, the State agrees

with counsel’s request to modify the judgment to reflect that Hoff pleaded not true to

the paragraphs heard on its petition.

We may modify a trial court’s judgment to correct errors that contradict the

record. Alexander v. State, 496 S.W.2d 86, 87 (Tex. Crim. App. 1973) (modifying

judgment to reflect plea of “not guilty” entered on the record); Arent v. State, No. 02-

20-00023-CR, 2020 WL 6326151, at *1–2 (Tex. App.—Fort Worth Oct. 29, 2020, no

pet.) (mem. op., not designated for publication) (modifying judgment to reflect plea of

“not true” entered on the record). Having reviewed the record, we agree that the trial

court’s judgment incorrectly states that Hoff pleaded true to the allegations in the

4 State’s petition. Accordingly, we modify the judgment to reflect Hoff’s plea of “not

true.” See Tex. R. App. P. 43.2(b).

Except for this modification, we agree with counsel that this appeal is wholly

frivolous and without merit. Our independent review of the record reveals nothing

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

827–28 (Tex. Crim. App. 2005); see also Meza v. State, 206 S.W.3d 684, 685 n.6 (Tex.

Crim. App. 2006). We thus grant counsel’s motion to withdraw, modify the trial

court’s judgment to reflect Hoff’s plea of “not true,” and affirm the judgment as

modified. See Tex. R. App. P. 43.2(b).

/s/ Dana Womack

Dana Womack Justice

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

Delivered: April 28, 2022