Albert Ray Ford Bacy AKA Albert Ray FordBacy v. State ( 2019 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-18-00167-CR
No. 02-18-00168-CR
___________________________
ALBERT RAY FORD BACY AKA ALBERT RAY FORDBACY, Appellant
V.
THE STATE OF TEXAS
On Appeal from the 372nd District Court
Tarrant County, Texas
Trial Court No. 1449929D, 1526355D
Before Gabriel, Kerr, and Womack, JJ.
Memorandum Opinion by Justice Womack
MEMORANDUM OPINION
Appellant Albert Ray Ford Bacy appeals his convictions for aggravated sexual
assault of a child under the age of seventeen and failure to comply with sexual
offender registration requirements. See Tex. Penal Code Ann. § 22.011(a)(2); Tex.
Code Crim. Proc. Ann. art. 62.102(a). We will affirm the trial court’s judgment related
to the aggravated sexual assault of a child. We will modify the failure-to-comply
judgment to reflect the proper statute and affirm that judgment as modified.
After the State charged Bacy with three counts of sexual assault of a child
under the age of seventeen, the State and Bacy agreed to a charge bargain wherein the
State waived two of the three counts in exchange for Bacy’s plea of guilty to the
remaining count. Sentencing was left to the trial court, which deferred adjudication
and placed Bacy on community supervision for ten years. Under the terms of his
community supervision, Bacy was required to comply with sexual offender
registration requirements. Bacy did not comply, and the State filed a petition to
proceed to adjudication. In addition, the State obtained an indictment charging Bacy
with the offense of failure to comply with sexual offender requirements.
The trial court held a hearing regarding both the State’s petition to proceed to
adjudication and on the newly indicted charge, wherein Bacy pleaded true to three of
the State’s allegations in the petition and guilty to the failure-to-comply charge. The
trial court sentenced Bacy to eight years’ confinement regarding the adjudicated sexual
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assault charge and three years’ confinement regarding the failure-to-comply charge
and ordered the sentences to run concurrently. This appeal followed.
Bacy’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. 386 U.S. 738,
87 S. Ct. 1396 (1967). In compliance with Kelly v. State, counsel notified Bacy of his
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 the appeal is frivolous, and took concrete measures to facilitate
Bacy’s review of the appellate record. See 436 S.W.3d 313, 319 (Tex. Crim. App.
2014). This court afforded Bacy the opportunity to file a brief on his own behalf, but
he did not do so.
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 the record and counsel’s brief. We agree with
counsel that this appeal is wholly frivolous and without merit—we find nothing in the
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record that arguably might support an appeal. See Bledsoe v. State, 178 S.W.3d 824,
827–28 (Tex. Crim. App. 2005).
In this case, however, we will modify the judgment to reflect the correct statute
for the offense of failure to comply with sexual offender registration requirements.
The trial court’s judgment reflects that the statute of Bacy’s failure-to-comply offense
is Article 62.10 of the Texas Code of Criminal Procedure. But in 2005, Article 62.10
was redesignated as Article 62.102 and amended during the 79th Regular Session of
the Texas Legislature. See Act of May 26, 2005, 79th Leg., R.S., ch. 1008, § 1.01, 2005
Tex. Gen. Laws 3385, 3386, 3407 (current version at Tex. Code Crim. Proc. Ann. art.
62.102). Specifically, Article 62.102(a) defines the offense of failure to comply with
sexual offender registration requirements. Tex. Code Crim. Proc. Ann. art. 62.102(a).
The Texas Rules of Appellate Procedure give this Court authority to modify
judgments to correct errors and make the record speak the truth. Tex. R. App. P.
43.2(b); see French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992); Rhoten v. State,
299 S.W.3d 349, 356 (Tex. App.—Texarkana 2009, no pet.). Therefore, we modify
the failure-to-comply judgment to indicate that the correct statute for the offense of
which Bacy was convicted is Article 62.102(a) of the Texas Code of Criminal
Procedure. See Tex. Code Crim. Proc. Ann. art. 62.102(a).
Accordingly, we grant counsel’s motion to withdraw; we affirm the trial court’s
judgment regarding the aggravated sexual assault of a child under the age of
seventeen; and, as modified, we affirm the trial court’s failure-to-comply judgment.
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/s/ Dana Womack
Dana Womack
Justice
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: August 26, 2019
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