Johnny Ondrea Kelly v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: July 24, 2025
• Docket: 13-24-00527-CR
• Status: Published

Opinion

NUMBER 13-24-00527-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

JOHNNY ONDREA KELLY, Appellant,

v.

THE STATE OF TEXAS, Appellee.

ON APPEAL FROM THE 21ST DISTRICT COURT OF BURLESON COUNTY, TEXAS

MEMORANDUM OPINION

Before Justices Silva, Peña, and Cron Memorandum Opinion by Justice Silva

Appellant Johnny Ondrea Kelly was convicted by a jury of assault on a public

servant and sentenced by the trial court to fifty year’s imprisonment, enhanced by appellant’s habitual felon offender status. 1 See TEX. PENAL CODE ANN. §§ 12.42(a),

22.02(b)(1). Appellant’s court-appointed counsel has filed an Anders brief stating that

there are no arguable grounds for appeal. See Anders v. California, 386 U.S. 738, 744

(1967). We affirm the trial court’s judgment as modified.

I. ANDERS BRIEF

Pursuant to Anders v. California, appellant’s court-appointed appellate counsel

filed a brief and a motion to withdraw with this Court, stating that his review of the record

yielded no grounds of reversible error upon which an appeal could be predicated. See id.

Counsel’s brief meets the requirements of Anders as it presents a professional evaluation

demonstrating why there are no arguable grounds to advance on appeal. See In re

Schulman, 252 S.W.3d 403, 406 n.9 (Tex. Crim. App. 2008) (orig. proceeding) (“In Texas,

an Anders brief need not specifically advance ‘arguable’ points of error if counsel finds

none, but it must provide record references to the facts and procedural history and set

out pertinent legal authorities.” (citing Hawkins v. State, 112 S.W.3d 340, 343–44 (Tex.

App.—Corpus Christi–Edinburg 2003, no pet.))); Stafford v. State, 813 S.W.2d 503, 510

n.3 (Tex. Crim. App. 1991).

In compliance with High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel

Op.] 1978) and Kelly v. State, 436 S.W.3d 313, 319–22 (Tex. Crim. App. 2014),

appellant’s counsel carefully discussed why, under controlling authority, there is no

reversible error in the trial court’s judgment. Appellant’s counsel also informed this Court

in writing that he: (1) notified appellant that counsel has filed an Anders brief and a motion

1 This case is before this Court on transfer from the Tenth Court of Appeals in Waco pursuant to a

docket-equalization order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. § 73.001. 2 to withdraw; (2) provided appellant with copies of both pleadings; (3) informed appellant

of his rights to file pro se responses, to review the record prior to filing those responses,

and to seek discretionary review if we conclude that the appeal is frivolous; and

(4) provided appellant with a form motion for pro se access to the appellate record that

only requires appellant’s signature and date with instructions to file the motion within ten

days. See Anders, 386 U.S. at 744; Kelly, 436 S.W.3d at 319–20; see also In re

Schulman, 252 S.W.3d at 408–09. Appellant filed a timely motion seeking pro se access

to the appellate record. Appellant did not file a pro se response.

II. INDEPENDENT REVIEW

Upon receiving an Anders brief, we must conduct a full examination of all the

proceedings to determine whether the case is wholly frivolous. Penson v. Ohio, 488 U.S.

75, 80 (1988). We have reviewed the record and counsel’s brief, and we have found

nothing that would arguably support an appeal. See Bledsoe v. State, 178 S.W.3d 824,

827–28 (Tex. Crim. App. 2005) (“Due to the nature of Anders briefs, by indicating in the

opinion that it considered the issues raised in the briefs and reviewed the record for

reversible error but found none, the court of appeals met the requirements of Texas Rule

of Appellate Procedure 47.1.”); Stafford, 813 S.W.2d at 511.

III. MOTION TO WITHDRAW

In accordance with Anders, appellant’s counsel has asked this Court for

permission to withdraw as counsel. See Anders, 386 U.S. at 744; see also In re

Schulman, 252 S.W.3d at 408 n.17. We grant counsel’s motion to withdraw. Within five

days from the date of this Court’s opinion, counsel is ordered to send a copy of this opinion

3 and this Court’s judgment to appellant and to advise him of his right to file a petition for

discretionary review. 2 See TEX. R. APP. P. 48.4; see also In re Schulman, 252 S.W.3d at

411 n.35; Ex parte Owens, 206 S.W.3d 670, 673 (Tex. Crim. App. 2006).

IV. MODIFICATION OF JUDGMENT

An appellate court has the power to correct and reform the judgment of the court

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

to do so, or make any appropriate order as the law and the nature of the case may require.

Bigley v. State, 865 S.W.2d 26, 27–28 (Tex. Crim. App. 1993); see TEX. R. APP. P. 43.2(b)

(permitting the intermediate courts of appeals to “modify the trial court’s judgment and

affirm it as modified”).

The judgment of conviction for assault on a public servant states the statute for

offense is 22.01(b)(1) of the Texas Penal Code. We modify the judgment to include the

enhancement statute of 12.42(a) of the Texas Penal Code. See Bigley, 865 S.W.2d at

27–28; see also Herrera v. State, No. 13-21-00325-CR, 2022 WL 3654751, at *2 (Tex.

App.—Corpus Christi–Edinburg Aug. 25, 2022, no pet.) (mem. op., not designated for

publication).

2 No substitute counsel will be appointed. Should appellant wish to seek further review of this case

by the Texas Court of Criminal Appeals, he must either retain an attorney to file a petition for discretionary review or file a pro se petition for discretionary review. Any petition for discretionary review must be filed within thirty days from the date of either this opinion or the last timely motion for rehearing or timely motion for en banc reconsideration that was overruled by this Court. See TEX. R. APP. P. 68.2. Any petition for discretionary review must be filed with the Clerk of the Texas Court of Criminal Appeals. See id. R. 68.3. Any petition for discretionary review should comply with the requirements of Texas Rule of Appellate Procedure 68.4. See id. R. 68.4. 4 V. CONCLUSION

We affirm the trial court’s judgment as modified.

CLARISSA SILVA Justice

Do not publish. TEX. R. APP. P. 47.2(b).

Delivered and filed on the 24th day of July, 2025.