David Cockerell v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: December 5, 2024
• Docket: 10-24-00172-CR
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-24-00172-CR

DAVID COCKERELL, Appellant v.

THE STATE OF TEXAS, Appellee

From the 87th District Court Freestone County, Texas Trial Court No. 21-010CR

MEMORANDUM OPINION

David Cockerell was charged with possession of a controlled substance. Cockerell

pled guilty, and an adjudication of guilt was deferred. Cockerell was placed on

community supervision, deferred adjudication for three years. Pursuant to the State’s

motion to adjudicate and Cockerell’s plea of true to all but three allegations, Cockerell

was subsequently adjudicated guilty and sentenced to 15 months in a State Jail facility.

We affirm the trial court’s judgment.

Cockerell’s appointed counsel filed a motion to withdraw and an Anders brief in support of the motion asserting that he has diligently reviewed the appellate record and

that, in his opinion, the appeal is frivolous. See Anders v. California, 386 U.S. 738, 87 S. Ct.

1396, 18 L. Ed. 2d 493 (1967). Counsel's brief evidences a professional evaluation of the

record for error and compliance with the other duties of appointed counsel. We conclude

that counsel has performed the duties required of appointed counsel. See Anders, 386 U.S.

at 744; High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. 1978); see also Kelly v. State, 436

S.W.3d 313, 319-320 (Tex. Crim. App. 2014); In re Schulman, 252 S.W.3d 403, 407 (Tex.

Crim. App. 2008).

In reviewing an Anders appeal, we must, "after a full examination of all the

proceedings, ... decide whether the case is wholly frivolous." Anders, 386 U.S. at 744; see

Penson v. Ohio, 488 U.S. 75, 80, 109 S. Ct. 346, 102 L. Ed. 2d 300 (1988); accord Stafford v.

State, 813 S.W.2d 503, 509-11 (Tex. Crim. App. 1991). An appeal is "wholly frivolous" or

"without merit" when it "lacks any basis in law or fact." McCoy v. Court of Appeals, 486

U.S. 429, 439 n. 10, 108 S. Ct. 1895, 100 L. Ed. 2d 440 (1988). After a review of the entire

record in this appeal, we have determined the appeal to be wholly frivolous. See Bledsoe

v. State, 178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005).

Counsel points out that the judgment incorrectly reflects that Cockerell pled true

to all violations alleged in the State’s motion to adjudicate when Cockerell pled not true

to three of the 12 allegations. Although this issue is not reversible error, as counsel

acknowledges, see Cummins v. State, 646 S.W.3d 605, 610 n.2 (Tex. App.—Waco 2022, pet.

ref'd); Allison v. State, 609 S.W.3d 624, 627-628 (Tex. App.—Waco 2020, order), counsel

requests that we modify the trial court’s judgment to “speak the truth.” See Asberry v.

Cockerell v. State Page 2 State, 813 S.W.2d 526, 531 (Tex. App.—Dallas 1991, pet. ref'd). Counsel is correct that

Cockerell pled not true to violations 1, 2, and 4, and pled true to violations 3, 5, 6, 7, 8, 9,

10, 11, and 12. Thus, we modify the trial court's judgment to reflect that Cockerell pled

true to violations 3, 5, 6, 7, 8, 9, 10, 11, and 12 and not true to violations 1, 2, and 4. See

Cummins, 646 S.W.3d at 616.

Accordingly, we affirm the trial court's judgment as modified.

Counsel's motion to withdraw from representation of Cockerell is granted.

TOM GRAY Chief Justice

Before Chief Justice Gray, Justice Johnson, and Justice Smith Affirmed as modified; motion granted Opinion delivered and filed December 5, 2024 Do not publish [CR25]

Cockerell v. State Page 3