Kevin Ray Wingo v. State

Opinion

MODIFY and AFFIRM; and Opinion Filed December 1, 2015.

In The Court of Appeals Fifth District of Texas at Dallas No. 05-15-00591-CR No. 05-15-00604-CR

KEVIN RAY WINGO, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 204th Judicial District Court Dallas County, Texas Trial Court Cause Nos. F13-62425-Q, F15-70088-Q

MEMORANDUM OPINION Before Justices Bridges, Lang-Miers, and Schenck Opinion by Justice Schenck

Kevin Ray Wingo was convicted, following the adjudication of his guilt, for aggravated

assault with a deadly weapon involving family violence, and his conviction for delivery of

marijuana in an amount of five pounds or less but more than one-fourth ounce. See TEX. PENAL

CODE ANN. § 22.02(a) (West 2011); TEX. FAM. CODE ANN. § 71.0021, 71.005 (West 2014 &

Supp. 2015); TEX. HEALTH & SAFETY CODE ANN. § 481.120(a), (b)(3) (West 2010). The trial

court assessed punishment on the aggravated assault case at ten years’ imprisonment. In the

marijuana case, the trial court assessed punishment, enhanced by two prior felony convictions, at

ten years’ imprisonment. On appeal, appellant’s attorney filed a brief in which she concludes the appeals are wholly frivolous and without merit. The brief meets the requirements of Anders v.

California, 386 U.S. 738 (1967). The brief presents a professional evaluation of the record

showing why, in effect, there are no arguable grounds to advance. See High v. State, 573 S.W.2d

807, 811–12 (Tex. Crim. App. [Panel Op.] 1978). Counsel delivered a copy of the brief to

appellant. We advised appellant of his right to file a pro se response, but he did not file a pro se

response. See Kelly v. State, 436 S.W.3d 313, 319–21 (Tex. Crim. App. 2014) (identifying

duties of appellate courts and counsel in Anders cases).

We have reviewed the record and counsel’s brief. See Bledsoe v. State, 178 S.W.3d 824,

826–27 (Tex. Crim. App. 2005) (explaining appellate court’s duty in Anders cases). We agree

the appeals are frivolous and without merit. We find nothing in the record that might arguably

support the appeals.

Although not an arguable issue, we note there are several errors in the judgments. In

cause no. 05-15-00591-CR, the judgment adjudicating guilt incorrectly omits the “involving

family violence” designation from the offense for which appellant was convicted. The trial court

expressly found the offense involved family violence. Moreover, the judgment adjudicating guilt

incorrectly reflects there was a plea bargain agreement, when, in fact, appellant entered an open

plea of true to the allegations in the motion to adjudicate. Accordingly, we modify the section of

the judgment adjudicating guilt entitled “offense for which defendant convicted” to state

“aggravated assault with deadly weapon involving family violence, and the section entitled

“terms of plea bargain” to state “open.” See TEX. R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d

26, 27–28 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529–30 (Tex. App.—

Dallas 1991, pet. ref'd).

-2- In cause no. 05-15-00604-CR, the judgment incorrectly identifies the statute for the

offense as “481.112 Health and Safety Code.” Appellant was convicted of delivery of marijuana

pursuant to section 481.120 of the Texas Health and Safety Code. See TEX. HEALTH & SAFETY

CODE ANN. § 481.120(a). And, the judgment incorrectly reflects there was a plea bargain

agreement although appellant entered an open guilty plea. Accordingly, we modify the section

of the judgment entitled “statute for offense” to show “481.120 Health and Safety Code,” and the

section entitled “terms of plea bargain” to state “open.” See TEX. R. APP. P. 43.2(b); Bigley, 865

S.W.2d at 27–28; Asberry, 813 S.W.2d at 529–30.

As modified, we affirm the trial court’s judgments.

/David J. Schenck/ DAVID J. SCHENCK JUSTICE

Do Not Publish TEX. R. APP. P. 47

150591F.U05

-3- Court of Appeals Fifth District of Texas at Dallas

JUDGMENT

KEVIN RAY WINGO, Appellant Appeal from the 204th Judicial District Court of Dallas County, Texas (Tr.Ct.No. No. 05-15-00591-CR V. F13-62425-Q). Opinion delivered by Justice Schenck, THE STATE OF TEXAS, Appellee Justices Bridges and Lang-Miers participating.

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

The section entitled “Offense for which Defendant Convicted” is modified to show “Aggravated Assault with Deadly Weapon Involving Family Violence.”

The section entitled “Terms of Plea Bargain” is modified to show “Open.”

As modified, we AFFIRM the trial court’s judgment adjudicating guilt.

Judgment entered December 1, 2015.

-4- Court of Appeals Fifth District of Texas at Dallas

KEVIN RAY WINGO, Appellant Appeal from the 204th Judicial District Court of Dallas County, Texas (Tr.Ct.No. No. 05-15-00604-CR V. F15-70088-Q). Opinion delivered by Justice Schenck, THE STATE OF TEXAS, Appellee Justices Bridges and Lang-Miers participating.

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

The section entitled “Statute for Offense” is modified to show “481.120 Health and Safety Code.”

The section entitled “Terms of Plea Bargain” is modified to show “Open.”

As modified, we AFFIRM the trial court’s judgment.

-5-