Terry Lee Powell v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: April 19, 2023
• Docket: 10-22-00271-CR
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-22-00271-CR

TERRY LEE POWELL, Appellant v.

THE STATE OF TEXAS, Appellee

From the 52nd District Court Coryell County, Texas Trial Court No. 17-23982

MEMORANDUM OPINION

Appellant, Terry Lee Powell, pleaded guilty to the offense of assault family

violence by occlusion. See TEX. PENAL CODE ANN. § 22.01(b)(2)(B). The trial court deferred

an adjudication of guilt and placed him on community supervision for ten years. The

State then filed a “Motion to Adjudicate Guilt and Revoke Community Supervision,”

alleging that Powell committed a new offense—indecent assault. At the hearing on the State’s motion, Powell pleaded “not true” to the sole

allegation in the State’s motion. After hearing testimony from several witnesses, the trial

court found the allegation to be “true,” adjudicated Powell’s guilt, and assessed

punishment at five years in prison. This appeal followed.

Powell’s appointed counsel filed a motion to withdraw and an Anders brief in

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

that, in his opinion, the appeal is frivolous. See Anders v. California, 386 U.S. 738, 744, 87

S. Ct. 1396, 1400, 18 L. Ed. 2d 493 (1967). Counsel’s brief evidences a professional

evaluation of the record for error and compliance with the other duties of appointed

counsel. As such, we conclude that counsel has 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 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 an Anders 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. 1895, 1902, 100 L. Ed. 2d 440 (1988). After

Powell v. State Page 2 a review of the entire record in this appeal, we further conclude that this is appeal is

wholly frivolous. See Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005).

Despite finding no reversible error in this record, counsel has identified Category

2 nonreversible error in the judgment of conviction regarding Powell’s plea to the

allegation contained in the State’s “Motion to Adjudicate Guilt and Revoke Community

Supervision.” See Cummins v. State, 646 S.W.3d 605, 616 (Tex. App.—Waco 2022, pet.

ref’d) (noting that Category 2 nonreversible error is error that is unpreserved, but not

subject to procedural default). A review of the record shows that Powell pleaded “not

true” to the allegation contained in the State’s “Motion to Adjudicate Guilt and Revoke

Community Supervision.” However, the judgment of conviction stated that Powell

pleaded “true.” We modify the trial court’s judgment of conviction to reflect that Powell

pleaded “not true” to the allegation contained in the State’s “Motion to Adjudicate Guilt

and Revoke Community Supervision.” See Cummins, 646 S.W.3d at 616; see also French v.

State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992) (stating that “an appellate court has

authority to reform a judgment to include an affirmative finding to make the record speak

the truth when the matter has been called to its attention by any source”).

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

Powell in this appeal.

Powell v. State Page 3 STEVE SMITH Justice

Before Chief Justice Gray, Justice Johnson, and Justice Smith Affirmed as modified; motion granted Opinion delivered and filed April 19, 2023 Do not publish [CR25]

Powell v. State Page 4