Gerrick Anthony Hawthorne v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: June 16, 2021
• Docket: 05-19-01201-CR
• Status: Published

Opinion

AFFIRMED as MODIFIED and Opinion Filed June 16, 2021

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-19-01201-CR

GERRICK ANTHONY HAWTHORNE, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the Criminal District Court No. 7 Dallas County, Texas Trial Court Cause No. F-1952867-Y

MEMORANDUM OPINION Before Justices Schenck, Reichek, and Carlyle Opinion by Justice Reichek Gerrick Hawthorne appeals his conviction for aggravated assault with a

deadly weapon. The incident giving rise to the charge involved appellant threatening

the complainant with a knife while she was pregnant with their child. Appellant

pleaded not guilty to the offense and not true to an alleged prior offense submitted

by the State for punishment enhancement purposes. Following a jury trial on both

guilt/innocence and punishment, the jury found appellant guilty of the offense as

alleged in the indictment and found the enhancement allegation to be true.

Punishment was assessed at ten years in prison. On appeal, appellant’s court-appointed appellate counsel has filed a brief in

which she concludes there are no arguable points of error and the appeal is wholly

frivolous and without merit. She has also filed an accompanying motion to withdraw

as appointed counsel. When an appellate court receives an Anders brief asserting no

arguable grounds for appeal exist, we must determine that issue independently by

conducting our own review of the record. See Anders v. California, 386 U.S. 738,

744 (1967) (emphasizing that the reviewing court, and not appointed counsel,

determines, after full examination of proceedings, whether the case is “wholly

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

(quoting Anders). If we conclude, after conducting an independent review, that

“appellate counsel has exercised professional diligence in assaying the record for

error” and agree the appeal is frivolous, we should grant counsel’s motion to

withdraw and affirm the trial court’s judgment. In re Schulman, 252 S.W.3d 403,

409 (Tex. Crim. App. 2008); Meza v. State, 206 S.W.3d 684, 689 (Tex. Crim. App.

2006).

The brief before us meets the requirements of Anders. It presents a

professional evaluation of the record showing why 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). We advised

appellant by letter of his right to file a pro se response and appellant responded by

filing a pro se brief. See Kelly v. State, 436 S.W.3d 313, 319–21 (Tex. Crim. App.

–2– 2014) (appellant has right to file pro se response to Anders brief filed by counsel).

After reviewing appellant’s brief and the record, we conclude the brief presents no

arguable grounds to advance. See Bledsoe v. State, 178 S.W.3d 824, 827 (Tex. Crim.

App. 2005).

Although not an arguable issue, we note that the trial court’s judgment does

not reflect (1) appellant’s plea of “not true” to the enhancement allegation in the

indictment, (2) the jury’s finding of “true” to the enhancement allegation, or (3) the

trial court’s affirmative finding of family violence. This Court has the power to

modify a judgment to make the record speak the truth when we have the necessary

information before us to do so. See TEX. R. APP. P. 43.2(b); Bigley v. State, 865

S.W.2d 26, 28 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529–30

(Tex. App.–Dallas 1991, pet. ref’d). Thus, on our own motion, we modify the trial

court’s judgment in the following manner: (1) in the space provided for “1st

Enhancement Paragraph,” we delete “N/A” and replace it with “Pleaded Not True;”

(2) in the space provided for “Finding on 1st Enhancement Paragraph,” we delete

“N/A” and replace it with “True;” and (3) in the portion of the judgment for “special

findings or orders,” we add the language “THE COURT MAKES AN

AFFIRMATIVE FINDING OF FAMILY VIOLENCE.” We grant counsel’s motion

–3– to withdraw and, as modified, we affirm the trial court’s judgment.

/Amanda L. Reichek/ AMANDA L. REICHEK JUSTICE

Do Not Publish TEX. R. APP. P. 47.2(b) 191201F.U05

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

GERRICK ANTHONY On Appeal from the Criminal District HAWTHORNE, Appellant Court No. 7, Dallas County, Texas Trial Court Cause No. F-1952867-Y. No. 05-19-01201-CR V. Opinion delivered by Justice Reichek. Justices Schenck and THE STATE OF TEXAS, Appellee Carlyle participating.

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

(1) in the space provided for “1st Enhancement Paragraph,” the term “N/A” is deleted and replaced with “Pleaded Not True;” (2) in the space provided for “Finding on 1st Enhancement Paragraph,” the term “N/A” is deleted and replaced with “True;” and (3) in the portion of the judgment for “special findings or orders,” the language “THE COURT MAKES AN AFFIRMATIVE FINDING OF FAMILY VIOLENCE” is added.

As REFORMED, the judgment is AFFIRMED.

Judgment entered June 16, 2021

–5–