Billy Don Russell v. State ( 2019 )


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  •              In the
    Court of Appeals
    Second Appellate District of Texas
    at Fort Worth
    ___________________________
    No. 02-19-00065-CR
    ___________________________
    BILLY DON RUSSELL, Appellant
    V.
    THE STATE OF TEXAS
    On Appeal from the 297th District Court
    Tarrant County, Texas
    Trial Court No. 1498393D
    Before Bassel, Gabriel, and Kerr, JJ.
    Per Curiam Memorandum Opinion
    MEMORANDUM OPINION
    Appellant Billy Don Russell pleaded guilty to Count 2 (aggravated sexual
    assault of a child under fourteen), Count 3 (indecency with a child by contact), and
    Count 4 (indecency with a child by contact) in exchange for the State’s waiving
    Count 1 (continuous sexual abuse of a child younger than fourteen years of age) and
    Counts 5 through 8 (indecency with a child). After a presentence investigation, the
    trial court sentenced Russell to twenty-five years’ confinement on Count 2 and ten
    years’ confinement each on Counts 3 and 4 and ordered all of the sentences to run
    concurrently. The trial court certified that this “is a plea-bargain case, but the trial
    court has given permission to appeal, and the defendant has the right of appeal.”
    Russell’s court-appointed appellate counsel has filed a motion to withdraw as
    counsel and a brief in support of that motion. Counsel’s brief and motion meet the
    requirements of Anders v. California by presenting a professional evaluation of the
    record demonstrating why there are no arguable grounds for relief. See 
    386 U.S. 738
    ,
    744, 
    87 S. Ct. 1396
    , 1400 (1967). In compliance with Kelly v. State, counsel notified
    Russell of the motion to withdraw, provided him a copy of the brief, informed him of
    his right to file a pro se response, informed him of his pro se right to seek
    discretionary review should this court hold that the appeal is frivolous, and took
    concrete measures to facilitate Russell’s review of the appellate record. 
    436 S.W.3d 313
    , 319 (Tex. Crim. App. 2014). This court afforded Russell the opportunity to file a
    response on his own behalf, but he did not do so.
    2
    As the reviewing court, we must conduct an independent evaluation of the
    record to determine whether counsel is correct in determining that the appeal is
    frivolous. See Stafford v. State, 
    813 S.W.2d 503
    , 511 (Tex. Crim. App. 1991); Mays v.
    State, 
    904 S.W.2d 920
    , 923 (Tex. App.—Fort Worth 1995, no pet.). Only then may we
    grant counsel’s motion to withdraw. See Penson v. Ohio, 
    488 U.S. 75
    , 82–83, 
    109 S. Ct. 346
    , 351 (1988).
    We have carefully reviewed counsel’s brief and the record. We agree with
    counsel that this appeal is wholly frivolous and without merit; we find nothing in the
    record before us that arguably might support the appeal. See Bledsoe v. State, 
    178 S.W.3d 824
    , 827–28 (Tex. Crim. App. 2005); see also Meza v. State, 
    206 S.W.3d 684
    , 685
    n.6 (Tex. Crim. App. 2006).
    Although not an arguable issue, we note that the trial court’s three judgments
    incorrectly state that the “Sex Offender Registration Requirements do not apply to the
    Defendant” and that “[t]he age of the victim at the time of the offense was N/A.”
    Russell was convicted of aggravated sexual assault of a child under fourteen years of
    age and two counts of indecency with a child by contact, and both offenses are
    subject to the sex offender registration requirements of Chapter 62 of the Texas Code
    of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 62.001(5)(A). On our
    own motion, we modify each of the three judgments to show that the sex offender
    registration requirements apply and that the age of the victim at the time of the
    offenses was nine years old. See Tex. R. App. P. 43.2(b); Villatoro v. State, No. 05-18-
    3
    00639-CR, 
    2019 WL 3940971
    , at *9 (Tex. App.—Dallas Aug. 21, 2019, pet. filed)
    (mem. op., not designated for publication) (modifying judgment to show applicability
    of sex offender registration requirements and to state victim’s age); Chol v. State,
    No. 05-18-00518-CR, 
    2019 WL 2266546
    , at *1 (Tex. App.—Dallas May 24, 2019, no
    pet.) (mem. op., not designated for publication) (same in Anders appeal).
    Accordingly, we grant counsel’s motion to withdraw, and we affirm as modified
    the trial court’s judgments.
    Per Curiam
    Do Not Publish
    Tex. R. App. P. 47.2(b)
    Delivered: October 10, 2019
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