Court of Appeals of Texas, Second District, Fort Worth
FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY
PANEL: LIVINGSTON, C. J; GARDNER and GABRIEL, JJ.
TERRIE LIVINGSTON CHIEF JUSTICE
Appellant Derek Maurice Roots appeals from his convictions for assault against a member of his family or household and aggravated assault with a deadly weapon. In both cases, we affirm.
In separate cases, a grand jury indicted appellant for third-degree-felony assault against a member of his family or household and aggravated assault with a deadly weapon. Each indictment contained an enhancement paragraph alleging that appellant had been convicted of a felony in 1997. In each case, appellant judicially confessed and pled guilty pursuant to a plea bargain agreement. The trial court deferred its adjudication of appellant's guilt in each case and placed him on community supervision, with explicit conditions, for eight years. The trial court also found the indictments' enhancement paragraphs to be true. In the case for aggravated assault with a deadly weapon, the trial court's deferred adjudication order did not express a deadly-weapon finding.
Less than two years later, the State filed petitions for the trial court to proceed with the adjudication of appellant's guilt of the charges, alleging that he had committed a new offense, had failed to report to the community supervision office, and had failed to pay fees. At a hearing, appellant pled true to some of the petitions' allegations. After receiving evidence, the trial court found all of the allegations in the petitions to be true, revoked appellant's community supervision, and convicted him of each charge.
As to appellant's charge for assault on a member of his family or household, the trial court sentenced him to twenty years' confinement. Concerning appellant's charge for aggravated assault with a deadly weapon, the trial court sentenced him to twenty-five years' confinement. The trial court's initial judgment in the case for aggravated assault with a deadly weapon stated "N/A" with respect to whether the trial court had entered a deadly-weapon finding. The trial court ordered the sentences to run concurrently.
After appellant filed a notice of appeal in both cases, the State filed a motion for a judgment nunc pro tunc in the aggravated assault case. In the motion, the State alleged that the "N/A" statement concerning whether the trial court had entered a deadly-weapon finding was a clerical error because the trial court had made a deadly-weapon finding by adjudicating appellant's guilt for aggravated assault with a deadly weapon. Thus, the State asked the trial court to enter a new judgment that contained the entry of an affirmative deadly-weapon finding. At the hearing on the State's motion, a prosecutor explained,
The indictment in the underlying case, the [aggravated] assault case, says he threatened a female victim . . . with a firearm. Had that not been a deadly weapon, obviously that wouldn't have been a felony. . . . So the fact that he was convicted of a felony necessitates the fact that the Court found it was a deadly weapon to give him this felony conviction.
The reason we care about this is that on a 25-year sentence, [appellant] is showing to be eligible for parole in 2014, which is calculated incorrectly. I have talked to the . . . time calculation department. They told me that the reason they're calculating it that way is because the face of the judgment does not say yes, finding of deadly weapon, yes. It says NA. That NA on this judgment . . . is a clerical error.
At the end of the hearing, the trial court granted the State's motion and entered a nunc pro tunc order stating that a deadly weapon—specifically, a firearm—had been used in the offense. In granting the State's motion, the trial court stated, "I believe that by pleading guilty to aggravated assault with a deadly weapon and then me finding him guilty of aggravated assault with a deadly weapon that that makes the specific finding that there was a deadly weapon based on the charge contained in the indictment."
The Assault Conviction
In cause number 02-12-00439-CR, which is the appeal from appellant's conviction for assault against a member of his family or household, his appointed appellate counsel has filed a motion to withdraw as counsel and a brief in support of that motion. In the brief and motion, counsel avers that he has diligently reviewed the record and that appellant's appeal in cause number 02-12-00439-CR is frivolous. Counsel's brief and motion meet the requirements of Anders v. California by presenting a professional evaluation of the record and demonstrating why there are no arguable grounds for relief. 386 U.S. 738, 744– 45, 87 S.Ct. 1396, 1400 (1967); see In re Schulman, 252 S.W.3d 403, 406–12 (Tex. Crim. App. 2008) (orig. proceeding) ...