Kendrick Merrell Davis v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: February 15, 2023
• Docket: 10-22-00256-CR
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-22-00256-CR

KENDRICK MERRELL DAVIS, Appellant v.

THE STATE OF TEXAS, Appellee

From the 21st District Court Burleson County, Texas Trial Court No. 15270

MEMORANDUM OPINION

Pursuant to a plea agreement with the State, appellant, Kendrick Merrell Davis,

pleaded guilty to the offense of failing to register as a sex offender, a third-degree felony.

See TEX. CODE CRIM. PROC. ANN. art. 62.102(a), (b)(2). The trial court accepted Davis’s

guilty plea, found him guilty, sentenced him to ten years’ imprisonment, suspended the

sentence, and placed him on community supervision for five years with a $1,000 fine. Near the end of the term of Davis’s community supervision, the State filed an

original and an amended motion to revoke, alleging that Davis violated numerous terms

and conditions of his community supervision. The trial court conducted a hearing on the

State’s motion to revoke. At the hearing, Davis pleaded “not true” to the allegations

contained in the State’s motion to revoke. At the conclusion of the hearing, the trial court

found that all of the allegations contained in the State’s amended motion to revoke were

true and subsequently revoked Davis’s community supervision. The trial court assessed

punishment at seven years’ confinement with a $1,050 fine and certified Davis’s right to

appeal the revocation of his community supervision. This appeal followed.

Davis’s appellate attorney has filed a motion to withdraw and a brief in support

of the motion asserting that he has diligently reviewed the appellate record and that, in

his opinion, the appeal is frivolous pursuant to Anders v. California. See generally 386 U.S.

738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967). However, Davis’s appellate attorney has

presented nonreversible error in the judgment pursuant to this Court’s order in Allison v.

State. See 609 S.W.3d 624, 628 (Tex. App.—Waco 2020, order).

Counsel’s brief demonstrates a professional evaluation of the record for error and

compliance with the other duties of appointed counsel. Thus, we conclude that counsel

performed the duties required of appointed counsel. See Anders, 386 U.S. at 744, 87 S. Ct.

at 1400; High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. 1978); see also Kelly v. State, 436

Davis v. State Page 2 S.W.3d 313, 319-20 (Tex. Crim. App. 2014); In re Schulman, 252 S.W.3d 403, 407 (Tex. Crim.

App. 2008).

In reviewing the Anders portion of this appeal, we must, “after a full examination

of all the proceedings . . . decide whether the case is wholly frivolous.” Anders, 386 U.S.

at 744, 87 S. Ct. at 1400; see Penson v. Ohio, 488 U.S. 75, 80, 109 S. Ct. 346, 351, 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, 438 n.10, 108 S. Ct. 1985, 1902, 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);

Cummins v. State, 646 S.W.3d 605, 620-21 (Tex. App.—Waco 2022, pet. ref’d).

However, as noted earlier, despite finding no reversible error, Davis’s appellate

attorney has presented two issues of nonreversible error—one pertaining to the absence

in the record of an “Exhibit A” that was referenced in the trial court’s judgment of

conviction and the second regarding Davis’s plea to the allegations contained in the

State’s amended motion to revoke. With regard to the absence of “Exhibit A” from the

record, while this appeal was pending, the Burleson County District Clerk’s Office filed

Davis v. State Page 3 a Supplemental Clerk’s Record containing “Exhibit A” that was referenced in the trial

court’s judgment of conviction.1 Accordingly, that complaint has been resolved.

Regarding Davis’s plea to the allegations contained in the State’s amended motion

to revoke, which we identify as Category 2 nonreversible error, the judgment of

conviction stated that Davis pleaded “true.” However, a review of the record shows that

Davis pleaded “not true” to the State’s allegations. Therefore, we modify the trial court’s

judgment of conviction to reflect that Davis pleaded “not true” to the allegations

contained in the State’s amended motion to revoke. See Cummins, 646 S.W.3d at 616.

Based on the foregoing, we affirm the trial court’s judgment of conviction as

modified. Furthermore, we grant counsel’s motion to withdraw from representation of

Davis in this appeal.

STEVE SMITH Justice

Before Chief Justice Gray, Justice Johnson, and Justice Smith (Chief Justice Gray concurring with a note)* Affirmed as modified Opinion delivered and filed February 15, 2023 Do not publish [CR25]

1 “Exhibit A” is the trial court’s list of findings of “true” or “not true” as to the allegations contained in the State’s amended motion to revoke.

Davis v. State Page 4 *(Chief Justice Gray concurs in the judgment of the Court. A separate opinion will not issue.)

Davis v. State Page 5