Darrell Anthony Hinds v. The State of Texas--Appeal from 122nd District Court of Galveston County

Affirmed and Memorandum Opinion filed October 25, 2007.

In The

Fourteenth Court of Appeals

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NO. 14-06-01138-CR

NO. 14-06-01139-CR

NO. 14-06-01140-CR

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DARRELL ANTHONY HINDS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 122nd District Court

Galveston County, Texas

Trial Court Cause Nos. 05CR3501, 06CR0005, & 06CR0007

M E M O R A N D U M O P I N I O N

After a jury trial, appellant was found guilty of promotion of child pornography in cause number 05CR3501, aggravated sexual assault of a child in cause number 06CR0005, and sexual performance by a child in cause number 06CR0007. On November 3, 2006, appellant was sentenced to confinement in the Institutional Division of the Texas Department of Criminal Justice for ten years, probated for ten years for promotion of child pornography, confinement for ten years for sexual performance of a child, and confinement for fourteen years for aggravated sexual assault of a child. The sentences were ordered to be served consecutively. Appellant filed a notice of appeal in each case.

Appellant=s appointed counsel 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, 87 S. Ct. 1396 (1967), by presenting a professional evaluation of the record and demonstrating why there are no arguable grounds to be advanced. See High v. State, 573 S.W.2d 807, 811-12 (Tex. Crim. App. 1978).

A copy of counsel=s brief was delivered to appellant. Appellant was advised of the right to examine the appellate record and file a pro se response. See Stafford v. State, 813 S.W.2d 503, 510 (Tex. Crim. App. 1991). As of this date, more than sixty days has elapsed and no pro se response has been filed.

We have carefully reviewed the record and counsel=s brief and agree the appeal is wholly frivolous and without merit. See Bledsoe v. State, 178 S.W.3d 824, 827-28 (Tex. Crim. App. 2005). Further, we find no reversible error in the record. A discussion of the brief would add nothing to the jurisprudence of the state.

We have the authority to reform the trial court=s judgment if necessary.[1] See French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992); see also Tex. R. App. P. 43.2(b)The State has conceded that appellant=s sentence in cause number 05CR3501, promotion of child pornography, should not be cumulated.[2] When a cumulation order is improper, we are to reform the judgment to delete the improper cumulation order. Robbins v. State, 914 S.W.2d 582, 584 (Tex. Crim. App. 1996).

Accordingly, the judgments of the trial court are affirmed as reformed to delete the cumulation order with respect to cause number 05CR3501. The cumulation order remains in effect with respect to the sentences in cause numbers 06CR0005 and 06CR0007. The trial court=s judgments are affirmed in all other respects.

PER CURIAM

Judgment rendered and Memorandum Opinion filed October 25, 2007.

Panel consist Chief Justice Hedges and Justices Anderson and Seymore

Do Not Publish C Tex. R. App. P.47.2(b).

[1] Courts of appeals may reform the trial court=s judgment even when counsel has filed an Anders brief. See, e.g., Yarclay v. State, No. 2-06-217-CR, 2007 WL2330929 (Tex. App.CFort Worth Aug. 16, 2007, no pet.) (not designated for publication) (reforming erroneous restitution order); Wiley v. State, Nos. 01-05-00033-CR & 01-05-00034-CR, 2006WL1428850 (Tex. App.CHouston [1st Dist.] May 25, 2006, no pet.) (not designated for publication) (reforming erroneous enhancement finding).

[2] Under the current law, promotion of child pornography is an eligible offense for which the sentence may be ordered served consecutively to other sentences listed as eligible offenses, including aggravated sexual assault of a child and sexual performance by a child. See Act of May 23, 2005, 79th Leg., R.S., ch. 527, ' 1, 2005 Tex. Gen. Laws 1429, 1430. The change in the law does not apply retroactively to an offense commented before September 1, 2005, as the offenses in this case were. Id.