Terry Lee Powell v. the State of Texas ( 2023 )

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.
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STEVE SMITH
Justice
Before Chief Justice Gray,
Justice Johnson,
and Justice Smith
Affirmed as modified; motion granted
Opinion delivered and filed April 19, 2023
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