Affirmed and Opinion Filed July 7, 2022
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-21-00568-CR
No. 05-21-00569-CR
No. 05-21-00589-CR
DARIUS KEONTE SMITH, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 1
Dallas County, Texas
Trial Court Cause Nos. F17-70985-H, F17-39554-H, F18-70008-H
MEMORANDUM OPINION
Before Justices Partida-Kipness, Pedersen, III, and Nowell
Opinion by Justice Pedersen, III
Appellant Darius Keonte Smith was indicted and charged with three offenses:
assault causing bodily injury/family violence enhanced and two cases of aggravated
assault with a deadly weapon. In August 2018, appellant waived his right to a jury
trial and pleaded guilty in each case pursuant to plea-bargain agreements with the
State. The trial court followed the plea agreements, deferred adjudication of
appellant’s guilt, and placed him on community supervision for four years.
In October 2019, the State filed its Amended Motion to Revoke Probation or
Proceed with an Adjudication of Guilt (the Motion) in all three cases. The Motion
alleged a dozen violations of the terms of appellant’s community service, including
commission of the offenses of theft of a firearm and unlawful possession of a
firearm.
The Motion was heard on March 6, 2020. At that hearing, appellant was
properly admonished in writing and orally, he entered an open plea of true to the
allegations in the Motion, and he confirmed that he was entering that plea freely and
voluntarily. Appellant’s signed judicial confessions to each charge were entered into
evidence. Appellant testified and was cross-examined. And at the end of the
adjudication hearing, the trial court granted the State’s Motion and adjudicated
appellant’s guilt in all three cases. The court assessed appellant’s punishment at five
years’ confinement in the assault causing bodily injury/family violence enhanced
case and ten years’ confinement in each of the aggravated assault with a deadly
weapon cases. All the sentences were to run concurrently. This appeal followed.
In this Court, appellant’s attorney has filed a brief in each numbered case, in
which he concludes the appeal is wholly frivolous and without merit. The briefs meet
the requirements of Anders v. California, 386 U.S. 738 (1967). The briefs present 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, 812 (Tex. Crim. App. [Panel
Op.] 1978) (determining whether brief meets requirements of Anders). Counsel
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delivered a copy of the briefs to appellant. The State filed a letter response, in which
it agreed with appellant’s counsel that the appeal is without merit. We advised
appellant of his right to file a pro se response, but he did not file a response. See Kelly
v. State, 436 S.W.3d 313, 319–21 (Tex. Crim. App. 2014) (noting appellant has right
to file pro se response to Anders brief filed by counsel).
We have reviewed the record and counsel’s briefs. 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 that the appeal is frivolous and without merit. We find
nothing in the record that might arguably and substantively support the appeal of any
of the three judgments.
The State does ask us to make a clerical modification to the trial court’s
judgment in the assault causing bodily injury/family violence enhanced case,
because section 22.01 of the Texas Penal Code—the statute that the judgment cites
for appellant’s offense in the case—is not the most accurate statute to describe the
offense for which appellant was convicted. Section 22.01 of the penal code governs
assault offenses in general. TEX. PENAL CODE ANN. § 22.01. The State points out
that subsection 22.01(b)(2)(A) provides more specifically that an offense under
section 22.01 is a third-degree felony and includes the additional element of a
previous conviction for family violence. The State contends that subsection
22.01(b)(2)(A) describes the offense for which appellant was convicted, governs the
offense, and must be included in the judgment. We agree. See TEX. CODE CRIM.
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PROC. ANN. art. 42.01 § 1 (“The judgment shall reflect . . . 13. The offense or
offenses for which the defendant was convicted; 14. The date of the offense or
offenses and degree of offense for which the defendant was convicted.).
This Court has the power to correct and modify the judgments of the court
below to make the record speak the truth when it has the necessary information to
do so. 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). We modify the judgment in appellate case number 05-21-00569-
CR: under the heading “Statute for Offense,” we remove the general statutory
reference to “22.02 Penal Code,” and replace it with the specific statutory provision
that governs appellant’s offense in this case, “22.01(b)(2)(A) Penal Code.”
We affirm the trial court’s judgments in appellate cases 05-21-00568-CR and
05-21-00589. As modified we affirm the trial court’s judgment in appellate case 05-
21-00569-CR.
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210569f.u05
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Do Not Publish /Bill Pedersen, III//
TEX. R. APP. P. 47 BILL PEDERSEN, III
JUSTICE
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
DARIUS KEONTE SMITH, On Appeal from the Criminal District
Appellant Court No. 1, Dallas County, Texas
Trial Court Cause No. F17-70985-H.
No. 05-21-00568-CR V. Opinion delivered by Justice
Pedersen, III. Justices Partida-
THE STATE OF TEXAS, Appellee Kipness and Nowell participating.
Based on the Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
Judgment entered this 7th day of July, 2022.
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
DARIUS KEONTE SMITH, On Appeal from the Criminal District
Appellant Court No. 1, Dallas County, Texas
Trial Court Cause No. F17-39554-H.
No. 05-21-00569-CR V. Opinion delivered by Justice
Pedersen, III. Justices Partida-
THE STATE OF TEXAS, Appellee Kipness and Nowell participating.
Based on the Court’s opinion of this date, the judgment of the trial court is
MODIFIED as follows:
under the heading “Statute for Offense,” we remove the general statutory
reference to “22.02 Penal Code,” and replace it with the specific statutory
provision that governs appellant’s offense in this case, “22.01(b)(2)(A) Penal
Code.”
As modified, the trial court’s judgment is AFFIRMED.
Judgment entered this 7th day of July, 2022.
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
DARIUS KEONTE SMITH, On Appeal from the Criminal District
Appellant Court No. 1, Dallas County, Texas
Trial Court Cause No. F18-70008-H.
No. 05-21-00589-CR V. Opinion delivered by Justice
Pedersen, III. Justices Partida-
THE STATE OF TEXAS, Appellee Kipness and Nowell participating.
Based on the Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
Judgment entered this 7th day of July, 2022.
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