Markelle Gainer v. State

Opinion

Affirmed as Modified; Opinion Filed September 25, 2015.

In The

Court of Appeals

Fifth District of Texas at Dallas No. 05-15-00106-CR

MARKELLE GAINER, Appellant V.

THE STATE OF TEXAS, Appellee

On Appeal from the Criminal District Court No. 2 Dallas County, Texas

Trial Court Cause No. F11-72319-H

MEMORANDUM OPINION

Before Justices Bridges, Francis, and Myers Opinion by Justice Myers

Markelle Gainer appeals his conviction, following adjudication of his guilt, for continuous violence against the family. See TEX. PENAL CODE ANN. § 25.11(a), (c) (West 2011). The trial court assessed punishment at ten year’s imprisonment. On appeal, appellant’s attorney filed a brief in which he concludes the appeal is 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

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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 appeal is frivolous and without merit. We find nothing in the record that might arguably support the appeal.

Although not an arguable issue, we note 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 “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).

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

/Lana Myers/

LANA MYERS

JUSTICE

Do Not Publish TEX. R. APP. P. 47 150106F.U05

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Court of Appeals

Fifth District of Texas at Dallas

JUDGMENT

MARKELLE GAINER, Appellant Appeal from the Criminal District Court No. 2 of Dallas County, Texas (Tr.Ct.No.

No. 05-15-00106-CR V. F11-72319-I).

Opinion delivered by Justice Myers, THE STATE OF TEXAS, Appellee Justices Bridges and Francis participating.

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

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 this 25th of September, 2015.