MODIFY and AFFIRM; and Opinion Filed January 3, 2017.
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-16-00461-CR
SHERWIN BASIL HARE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 401st Judicial District Court
Collin County, Texas
Trial Court Cause No. 401-82553-2012
MEMORANDUM OPINION
Before Justices Lang, Brown, and Whitehill
Opinion by Justice Brown
Sherwin Basil Hare appeals his conviction, following adjudication of his guilt, for assault
involving family violence. The trial court assessed punishment at confinement in the county jail
for 275 days. On appeal, appellant’s attorney filed a brief in which she 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 arguable issues, we note several errors in the judgment adjudicating guilt.
Appellant was indicted for the third-degree felony offense of assault involving family violence
by impeding the breath. See TEX. PENAL CODE ANN. § 22.01(a), (b)(2)(B) (West Supp. 2016).
However, appellant pleaded guilty to the lesser included Class A misdemeanor offense of assault
involving family violence. Id. § 22.01(a), (b). The trial court placed appellant on deferred
community supervision for one year for the Class A misdemeanor offense, and later adjudicated
appellant guilty of the Class A misdemeanor offense. The judgment adjudicating guilt
incorrectly states the offense for which appellant was convicted as “Assault Fam/House Mem
Impede Breath/Circulat,” the degree of the offense as “3rd Degree Felony,” and the statute for
the offense as “Section 22.01(b)(2)(B) Penal Code.” Accordingly, on our own motion, we
modify the judgment adjudicating guilt to show the offense for which appellant was convicted is
“Assault/Family Violence,” the degree of the offense is “Class A Misdemeanor,” and the statute
for offense is “Penal Code 22.01.” 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).
Further, the trial court’s judgment adjudicating guilt incorrectly reflects there was a plea
bargain agreement. The record shows appellant entered an open plea of true to the allegations
recited in the motion to adjudicate. Accordingly, we modify the section of the judgment entitled
“terms of plea bargain” to state “open.” See id.
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As modified, we affirm the trial court’s judgment adjudicating guilt. We order the trial
court to enter an amended judgment reflecting these modifications.
/Ada Brown/
ADA BROWN
JUSTICE
Do Not Publish
TEX. R. APP. P. 47
160461F.U05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
SHERWIN BASIL HARE, Appellant On Appeal from the 401st Judicial District
Court, Collin County, Texas
No. 05-16-00461-CR V. Trial Court Cause No. 401-82553-2012.
Opinion delivered by Justice Brown. Justices
THE STATE OF TEXAS, Appellee Lang and Whitehill participating.
Based on the Court’s opinion of this date, the judgment adjudicating guilt of the trial
court is MODIFIED as follows:
The section entitled “Statute for Offense” is modified to show “Penal Code 22.01.”
The section entitled “Offense for which Defendant Convicted” is modified to show
“Assault/Family Violence.”
The section entitled “Degree” is modified to show “Class A Misdemeanor.”
The section entitled “Terms of Plea Bargain” is modified to show “Open.”
As modified, we AFFIRM the trial court’s judgment adjudicating guilt. We ORDER
the trial court to enter an amended judgment reflecting these modifications.
Judgment entered this 3rd day of January, 2017.
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