Aaron Richard Davison v. State ( 2019 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-19-00263-CR
Aaron Richard Davison, Appellant
v.
The State of Texas, Appellee
FROM THE 368TH DISTRICT COURT OF WILLIAMSON COUNTY
NO. 17-0177-K368, THE HONORABLE RICK J. KENNON, JUDGE PRESIDING
MEMORANDUM OPINION
Appellant Aaron Richard Davison was placed on community supervision after he
pled guilty to the offense of failure to stop and render aid. See Tex. Code Crim. Proc.
art. 42A.053; Tex. Transp. Code § 550.021(c)(1)(A). Eleven months later, the trial court granted
the State’s amended motion to revoke, revoked appellant’s community supervision, and
sentenced appellant to ten years’ confinement in the Texas Department of Criminal Justice.1 See
Tex. Code Crim. Proc. arts. 42A.751, 42A.755; Tex. Penal Code § 12.33.
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The State’s amended motion to revoke contained six allegations concerning appellant’s
violations of supervision conditions, which included the possession of an alcoholic beverage, the
use of a narcotic or habit-forming drug without a doctor’s prescription, the failure to submit to a
urine sample on two occasions, the failure to perform community-service restitution hours, and
the failure to complete a driver safety course. At the revocation hearing, appellant pled true to
all of the allegations in the motion, and the trial court found that appellant had violated the
conditions of his supervision as alleged. The parties then presented evidence as to whether
appellant’s supervision should be revoked or whether he should be sanctioned and continued on
community supervision.
Appellant’s court-appointed attorney has filed a motion to withdraw supported by
a brief concluding that the appeal is frivolous and without merit. The brief meets the
requirements of Anders v. California by presenting a professional evaluation of the record
demonstrating why there are no arguable grounds to be advanced. See Anders v. California,
386 U.S. 738, 744 (1967); Garner v. State, 300 S.W.3d 763, 766 (Tex. Crim. App. 2009); see
also Penson v. Ohio, 488 U.S. 75, 81–82 (1988).
Appellant’s counsel has certified to this Court that she sent copies of the motion
and brief to appellant, advised appellant of his right to examine the appellate record and file a pro
se response, and provided a motion to assist appellant in obtaining the record. See Kelly v. State,
436 S.W.3d 313, 319–20 (Tex. Crim. App. 2014); see also Anders, 386 U.S. at 744. Appellant
did not file a motion requesting access to the record, and, to date, has not filed a pro se response
or requested an extension of time to file a response.
We have conducted an independent review of the record—including the record of
the revocation proceedings and appellate counsel’s brief—and find no reversible error. See
Anders, 386 U.S. at 744; Garner, 300 S.W.3d at 766; Bledsoe v. State, 178 S.W.3d 824, 826–27
(Tex. Crim. App. 2005). We agree with counsel that the record presents no arguably meritorious
grounds for review and the appeal is frivolous. Counsel’s motion to withdraw is granted.2
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Appointed counsel certified to this Court that she advised appellant of his right to seek
discretionary review pro se should this Court declare his appeal frivolous. In addition, appellant
was informed of his right to file a pro se petition for discretionary review upon execution of the
Trial Court’s Certification of Defendant’s Right of Appeal. Nevertheless, appointed counsel
must comply with Rule 48.4 of the Texas Rules of Appellate Procedure, which mandates that
counsel send appellant a copy of this Court’s opinion and judgment along with notification of his
right to file a pro se petition for discretionary review within five days after this opinion is handed
down. See Tex. R. App. P. 48.4; see In re Schulman, 252 S.W.3d 403, 411 n.35 (Tex. Crim.
2
Through our independent review of the record, however, we note that the trial
court’s written judgment revoking community supervision contains non-reversible errors.
First, the judgment states that appellant was convicted of “Accident Involving
Death.” However, appellant pled guilty to violating section 550.021 of the Texas Transportation
Code, which establishes the offense of failure to stop and render aid. See Leming v. State,
493 S.W.3d 552, 559 (Tex. Crim. App. 2016) (referring to “Transportation Code statute, Section
550.021” as “the failure to stop and render aid statute”); Huffman v. State, 267 S.W.3d 902, 907
(Tex. Crim. App. 2008) (recognizing section 550.021 of Transportation Code as “[t]he statute
that makes the failure to stop and render aid a criminal offense); Duncan v. State,
No. 09-17-00300-CR, 2018 WL 3554676, at *7 (Tex. App.—Beaumont July 25, 2018, pet. ref’d)
(mem. op., not designated for publication) (stating that section 550.021 of Transportation Code
“defines the offense of failing to stop and render aid”). While the statute is entitled “Accident
Involving Personal Injury or Death,” it is in the subchapter entitled “Duties Following Accident.”
The statute does not penalize the conduct of causing an accident that involves injury or death.
Rather, it penalizes a person’s failure to comply with the statutory requirements concerning
stopping, returning, or remaining at the scene of an accident involving injury or death to
render aid. The offense is known as “failure to stop and render aid.” See Powers v. State,
No. 12-15-00237-CR, 2017 WL 511223, at *1 n.1 (Tex. App.—Tyler Feb. 8, 2017, no pet.)
App. 2008). The duty to send appellant a copy of this Court’s decision is an informational one,
not a representational one. See In re Schulman, 252 S.W.3d at 411 n.33. It is ministerial in
nature, does not involve legal advice, and exists after this Court has granted counsel’s motion to
withdraw. See id.
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(mem. op., not designated for publication) (notwithstanding judgment, court referred to
convicted offense “by its customary name, failure to stop and render aid”).
Second, the judgment revoking community supervision states that appellant’s
“Plea to Motion to Revoke” was “Not True.” However, the record of the revocation hearing
reflects that appellant entered pleas of “True” to all of the allegations contained in the amended
motion to revoke.
This Court has the authority to modify incorrect judgments when the necessary
information is available to do so. See Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26,
27–28 (Tex. Crim. App. 1993). Accordingly, we modify the judgment revoking community
supervision to reflect that the “Offense for which Defendant Convicted” is “Failure to Stop and
Render Aid” and that appellant’s “Plea to Motion to Adjudicate” was “True.”
As so modified, the trial court’s judgment revoking community supervision
is affirmed.
__________________________________________
Melissa Goodwin, Justice
Before Justices Goodwin, Baker, and Kelly
Modified and, as Modified, Affirmed
Filed: August 14, 2019
Do Not Publish
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