### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-09-00134- CR

Lee Vaughn Davis, App ellant

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F B ELL COUNTY , 264 TH JUDICI AL DISTRICT NO. 635 71, H ONO RAB LE MARTH A J. TRUDO , JUDGE P RESIDING

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

A jury convicted appellant L ee Va u ghn Davis of the offe nse of ag g rava ted assault with a deadly wea

pon. See Tex. Penal Code Ann. § 22.02(a) (2) (West Supp. 2009). Davis pleade d true to enhanc ement para g raphs alleg ing thre e p r io r f e lo ny c o n v ic ti o n s , a

n d p u nishment was assessed at 99 y ear s’ imprisonment.

The jury hear d evidenc e that, on J une 9, 20 0 8 , Davis attacke d his g irlfriend, Samantha Montgome ry . Davis and Montgome ry lived in an apar tment complex in Har

ker Heig hts with Montgome ry ’s six -y ear -old daug hter, A.M., and five-y ear -old son, I .M. Montgome ry testified that, on the day of the alleg ed assault, she was planning to end her rela tionship with Davis. Fe aring how Davis might rea ct to the brea k-up, Mo n t gomery had sent A.M. to stay with Montgome ry ’s friend Turquis Miller in a neig hboring apa rt m en t u n i t. At the time, I .M. was stay ing with his g randmother

.Montgo m ery testified that she called Davis and told him that she neede d to speak

with him. When he arr ived home, Montgome ry rec alled, she told Davis that she wanted to end their rela ti o n s h i p . Acc ording to Montgome ry , Davis responde d by putting his hand around her neck and choking her. Montgome ry explained tha t a fter Davis let g o of her, she “tried to esca pe out the door,” but he g rabbe d her, pulled her back to him, and started slapping her. After that, Montgome ry testif i ed , Da v is pulled her into the kitchen, g rabbe d a steak knife, and held it up to her neck. Montgome ry was “terri fied” at this point and “had to talk nice to him just for him to remove it.” Montgome ry further testified that afte r Davis put the knife down on the kitchen table, he picked up

a fry ing pan and threa

tened to hit her with it. He then told her that if the police came , “he was g oing to kill m e and kill himself.”

L ater , Montgome ry continued, A.M. returne d home and knocked on the door. Davis beg an y elling at A.M., and Montgome ry told h er to return to Miller’s apar tment. Acc ording to Montgome ry , afte r A.M. lef t, Davis resume d choking and hitting he r. Miller testified that A.M. returned to her apar tment cry ing hy sterica lly

. After speaking with A.M. about why she was upset, and lear ning from a neig hbor that he had hear d noises coming from Montgome ry ’s apar tment, Miller beca

me conce rned and immediately called 911. The police ar rived shortly

there afte r. Offic er Tammy Pearson of the Har ker Heig hts Police Depa

rtment testified that when she and another office r arr ived at Montgome ry ’s apar tment and announce d their prese nce, “the door flew open” and Montgome ry ran past the off i ce rs an d d own the stairs. Pearson then saw Davis in the apar

tment and attempt ed t o fi nd out from him what had happene d. Howeve r, acc ording to

2Pearson, Davis was very ang ry and ag itated and the office rs had difficulty eliciting information from

him. Pearson then left Davis with t he other office r and went to find Montgome ry . She found her downstairs out side Miller’s apartment and bega n asking her questions about t he incident. During their conver sation, Davis “ca me walking very fast and in an ag g ressive manner over toward us and he was demanding his key s fr o m h er.” Fe aring that Montgome ry was in dang er, Pearson place d herse lf betwee n them. Pearson testified tha t Davis then told her that “ I would have to shoot him. He wa s g oing to make it a felony .” Pear son thought this mea nt tha t D avis either ha d a we apon on him or he was about to assaul t ei t h er h er or Montgome ry . Pearson then radioe d for additional backup a nd Davis wa lked awa

y . W h en additional office rs arr ived, Davis was arr ested. Pearson testified that Davis resisted arr est and th at t h er e was a strug g le betwee n Davis and another office r, Br ad Duffy , that resulted in Davis being taken to the ground. Eventually , the officers were able t o secur e Davis in the patrol car . Duff

y t es t i fi ed that during the transport to the police depar tment, Davis told the office rs, “You all f***ed up this time.

. . . y ou’re g oing to have to kill me befor e we g et to the police depar tment.” Duffy added that Davis made “seve ral other threa ts” while he was in the patrol car and

rema ined “ve ry

irate a nd ag itated.” Da v i s’s court-a

ppointed attorney has filed a motion to withdraw supported b y a brief concluding that the appea l is frivolous and without merit. The brief meets the require ments of Anders v. Calif

ornia , 386 U.S

. 7 3 8 (1 9 6 7), by prese nting a profe ssional evalua tion of the rec ord demonstrating why there are no arg uable g rounds to be advanc ed. See also Penson v. Ohio , 488 U.S. 75 (1988); High v. State , 573 S.W .2d 807 (Tex. Crim. App. 1978); Currie v. State , 516 S.W .2d 684

3(Tex. Crim. App. 1974); Jack son v. St a t e , 4 85 S.W .2d 553 (Tex. Crim. App. 1972); Gainous

v. State , 436 S.W .2d 137 (Tex. Crim. App. 1969). Davis rec eived a copy of counsel’s brief and has submitt ed a written response objecting to counsel’s motion to withdraw and asser ting rea sons why he does not be lieve the a

ppeal is fr ivolous. We have revie wed the rec ord, counsel’s brief, and Da v i s ’s written response and find no reve rsible err or. See Garner v. State , No. PD-0904-07, 2009 Tex. Crim. App. L EXI S 1739, at *8 (Tex. Crim. App. Dec

. 9, 2009); Bledsoe v. State , 178 S.W .3d 824, 826-27 (Tex. Crim. App. 2005). We ag ree with counsel that the appea l is frivolous and without mer it. Counsel’s motion to withdraw is g rante d.

The judg ment of convic tion is affirmed.

__________________________________________ Bob Pembe rton, J ustice Be fore J ustices Patterson, Pury ear and Pember

ton Affir med Filed: F ebrua

ry 19, 2010 Do Not Publish

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