Affirmed as Modified; Opinion Filed September 25, 2015.
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-15-00106-CR
MARKELLE GAINER, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 2
Dallas County, Texas
Trial Court Cause No. F11-72319-H
MEMORANDUM OPINION
Before Justices Bridges, Francis, and Myers
Opinion by Justice Myers
Markelle Gainer appeals his conviction, following adjudication of his guilt, for
continuous violence against the family. See TEX. PENAL CODE ANN. § 25.11(a), (c) (West 2011).
The trial court assessed punishment at ten year’s imprisonment. On appeal, appellant’s attorney
filed a brief in which he concludes the appeal is wholly frivolous and without merit. The brief
meets the requirements of Anders v. California, 386 U.S. 738 (1967). The brief presents a
professional evaluation of the record showing why, in effect, there are no arguable grounds to
advance. See High v. State, 573 S.W.2d 807, 811–12 (Tex. Crim. App. [Panel Op.] 1978).
Counsel delivered a copy of the brief to appellant. We advised appellant of his right to file a pro
se response, but he did not file a pro se response. See Kelly v. State, 436 S.W.3d 313, 319–21
(Tex. Crim. App. 2014) (identifying duties of appellate courts and counsel in Anders cases).
We have reviewed the record and counsel’s brief. See Bledsoe v. State, 178 S.W.3d 824,
826–27 (Tex. Crim. App. 2005) (explaining appellate court’s duty in Anders cases). We agree
the appeal is frivolous and without merit. We find nothing in the record that might arguably
support the appeal.
Although not an arguable issue, we note the judgment adjudicating guilt incorrectly
reflects there was a plea bargain agreement, when, in fact, appellant entered an open plea of true
to the allegations in the motion to adjudicate. Accordingly, we modify the section of the
judgment adjudicating guilt entitled “terms of plea bargain” to state “open.” See TEX. R. APP. P.
43.2(b); Bigley v. State, 865 S.W.2d 26, 27–28 (Tex. Crim. App. 1993); Asberry v. State, 813
S.W.2d 526, 529–30 (Tex. App.—Dallas 1991, pet. ref'd).
As modified, we affirm the trial court’s judgment adjudicating guilt.
/Lana Myers/
LANA MYERS
JUSTICE
Do Not Publish
TEX. R. APP. P. 47
150106F.U05
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
MARKELLE GAINER, Appellant Appeal from the Criminal District Court
No. 2 of Dallas County, Texas (Tr.Ct.No.
No. 05-15-00106-CR V. F11-72319-I).
Opinion delivered by Justice Myers,
THE STATE OF TEXAS, Appellee Justices Bridges and Francis participating.
Based on the Court’s opinion of this date, the trial court’s judgment adjudicating guilt is
MODIFIED as follows:
The section entitled “Terms of Plea Bargain” is modified to show “Open.”
As modified, we AFFIRM the trial court’s judgment adjudicating guilt.
Judgment entered this 25th of September, 2015.
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