## NO. 12

- 22

- 00223

- CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS

DARRYL GLENN DAVIS , APPELLANT

V.

THE STATE OF TEXAS , APPELLEE §

§

§ APPEAL FROM THE 114TH

JUDICAL DISTRICT COURT

SMITH COUNTY, TEXAS

MEMORANDUM OPIN ION PER CURIAM Darryl Glenn Davis appeals his conviction for aggravated assault with a deadly weapon. Appellant’ s counsel filed a brief in compliance with Anders v. California , 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967) and Gainous v. State , 43 6 S.W.2d 137 (T ex. Crim. App. 1969). We affirm.

B ACKGROUND On April 5, 2021, Appellant and Clinton Smith, who knew each other through a mutual acquaintance for approximately a week, consumed alcohol and play ed dominoes and cards at a residence. The pair split and Smith arriv ed at a residence at 713 Boyd Street, Tyler, Texas. The

owner of that home allowed Smith t o park his pickup truck at the home an d temporarily reside in
the truck

. Later that same day, Deborah Eadson drove Appella nt in her white sedan to 7 13 Boyd
Street . O nce there, Appellant confronted Smith , as Smith sat in his truck , regarding $40.00 Appe llant claimed Smith owed him.
Smith claimed that he denied owing Appellant money

. Appellant observed money in the
d ash of Smith’s truck and b ecam e irritated

. Appellant walked to Eadson’s car , retrieved a tire
iron , returned to Smith , and struck him on t he head with the tire iron.2 In contrast, a ccording to Appellant, as the two disputed the debt, Smith attacked Appell ant with a knife, and Appe llan t, finding a tire iron in the back of a nearby pickup truck, swung the tire iron wildly at Smith in self

- defe nse and the tire iron struck Smith in the head. Appellant claimed that he wrestled with Smith, accounting for blood on Appellant’s shirt, and
afte r another person intervened, Appellant was able to run away from Smith. Tyler Police Department Officers ult imately arrested Appellan t

. Appellant was indicted for aggravated assault with a deadly weapon. 1 The indictment also alleged that Appellant h ad

t wo prior felony convictions, elevating his punishment level to that of a first

- degree felony with a
minimum i mprisonment term of twenty

- five years. 2 Appellant pleaded “not guilty” to the
offense. Appellant executed a waiver of a jury trial, and the m atte r proceeded to a bench trial. In addition to the above dueling accounts of the melee by Appellant and Smith, the
evidence at trial showed that Tyler Police Department Officers responded to a 911 ca ll of an assault occurring at the home

. When Tyler Po lice Department Officer Caleb Westbrook arrived, he parked his vehicle behind Eadson’s white sedan. He observed a man in the passenger seat , later identified as Appellant , discard objects from the open w indow that were subsequently
revealed to be a used cra ck cocaine pipe and a small container of crack cocaine. The officer observed that Appellant wore a plaid shirt, just as described by the 911 caller. Appellant denied being involved in the fracas for w hich the officers were called, and initially denied to ss ing any object s out of the window. 3
O fficer Westbrook noticed that Appellant was sweating and out of breath. The officer observed a “decent” amount of blood on Appellant’s shirt. The officers disc overed a tire iron
with human hair and blood in Eadson’ s white sedan near where Appellant had been seated when they first arrived. At the scene, officers observed fres h and bloody wounds on Smith’s head. At trial, Appellant claimed that Smith “ran into” the tire iron as Smith attempted to stab Appellant.

1 See T EX

. P ENAL C ODE A NN

. §§ 22. 02(a) (West Supp. 2022).

2 Aggravated assault with a dead ly weapon as cha rged is usually a second

- degree felony, punishable by imprisonment for a term of no less than two years and no m ore than twenty years. See id

. §§ 12.33(a) (West 2019), 22.02(b). However, because Appellant pleaded “true” to the State’s enh ancement allegat ions regarding his prior felony convictions, the trial court could assess a punishment of either life imprisonme nt, or imprisonment for a term of no less than 25 years and no more than 99 years. See id

. § 12.42(d) (West 2019).

3 Appellant later admitted that the drugs and pipe belonged to him.3 Th e evidence showed that Appellant struck the victim more than once in the head with the tire
iron.
In contrast to Appellant’s claim of self

- defense, t he trial court heard evidence that Appellant’s phys ical description and shirt matched the information that t he 911 caller provided to the dispatcher. The caller also described the assault on the phone as it occurred an d did not mention that the victim had a knife or that he took any defensive action. Instead, the caller only referred to Appellant striking th e victim in the head with a tire iron. Furthermore, in contrast to Appellant’s account that a third person inter vened, namely the homeowner at 713 Boyd Street, there was no testimony or other evide nce to corroborate this alleged fact. The trial court als o heard evidence that the trail of blood was only inside Smith’s truck and in the vicinity of the truck, and no blood trail le d towards Eadson’s vehicl e. In fact, the evidence showed that the vehicle was located approximately 100 feet away “ down the road” f rom the victim’s truck in the parking area of the home , allowing Appellant to escape rather than return to attack Smith. The trial court, as the sole judge of the credibility of th e witnesses, could have rationally concluded that Appellan t returned to Ea dson’s vehicle, and instead of fleeing after escaping the alleged threat , he retrieved the tire i ron, returned to Smith’s vehicle, and struck him in the head
with it. Smith consente d to a search of his person, his truck, and the area aroun d his truck. Th e officers also searched the curtilage around the home and did not find a knife of any sort. In
conclusion , t he trial court could have rationally inferred from this evidence that App ellant did
not act in self

- defense and committed the offe nse of aggravate d assault with a deadly weapon

. After the bench trial, the trial court found Appellant “guilty” of the offense and made an affirmative finding that Appellant used or exhibited a dea dly weapon during the commission of
the offense. During the subsequent p unishment hearing, Appellant pleaded “true” to both enhancement allegations. The trial court ass essed Appellant’s punishment at sixty years of imprisonment. This appeal followed.

A NALYSIS P URSUANT TO A NDERS V
. C ALIFORNIA Appellant’s cou nsel filed a bri ef in compliance with Anders v. California and Gainous v.
State . Appellant’s counsel states that he diligently reviewed the appellate record and is of the opinion that the record reflects no reversible error and that there is no error upon which an appeal can be predicated. H e further relates that he is well

- acquain ted with the facts in this case. In4 compliance with Anders , Gainous , and High v. State , 573 S.W.2d 807 (Tex. Crim. App. [Panel Op.] 1978), Appellant’s brief presents a chronolo gical summation of the procedural history of
the case and further states that A ppellant’s counsel is unable to ra ise any arguable issues for appeal. 4 Thereafter, Appellant filed a pro se brief in which he challenged the sufficiency of the evidence, parti cularly challeng ing the credibility of the witnesses and their substantive

tes timony

. As part of this issue, App ellant appears to raise various evidentiary sub

- issues such

as his allegation that the 911 call was improperly authenticat ed and the trial cour t allowed
inadmi ssible hearsay into evidence

. He also alleges that the trial court had an improper bias against him , and that the State engaged in prosecutorial misconduct

. We reviewed the record for
reversible error and found none. See Bledsoe v. State , 178 S.W.3d 824 , 826

– 27 (Tex. Crim. App. 2005).

C ONCLUSION As required by Stafford v. State , 813 S.W.2d 503 (Te x. Crim. App. 1991), Appellant’s
counsel moved for leave to withdraw. See also In re Schulman , 252 S.W.3d 403, 407 (Tex. Crim. App. 2008) (ori g. proceeding). We carried the motion for consideration with the merits. Having done so and finding no reversib le error, we grant Appellant’s counsel’s motion for leave to withdraw and affirm the trial court’s judgment. As a result of our disposition of this case, Appe llant’s counsel has a duty to, within five da ys of the date of this opinion, send a copy of the

o pinion and judgment to Appellant and advise him of his right to file a petition for discretionary
review. See T EX

. R. A PP

. P. 48.4; In re Schu lman , 252 S.W.3d at 411 n.35. Should Appellant
wish to seek review of this case by the Texas Court of Criminal A ppeals, he must either retain an attorney to file a petition for discretionary review on his behalf or he must file a petition for
discretionar y review pro se. Any petition for discretionary review must be filed within thirty days from either the date of this opinion or the date that the last timely motion for rehearing was overruled by this court. See T EX

. R. A PP

. P. 68.2. Any petition for di scretionary revi ew must be
filed with the Texas Court of Crim inal Appeals. See T EX

. R. A PP

. P. 68.3(a). Any pet ition for

4 In compliance with Kelly v. State , Appellant’s counsel provided Appel lant with a copy of the brief, notified Appellant of h is motion to withdraw as counsel, informed Appellant of his righ t to file a pro se respons e, and took concrete measures to facilitate Appellant’s review of the appellate record. See Kelly v. State , 436 S.W.3d 313, 319 (Tex. Crim. App. 2014).5 discretionary review should comply with the requirements of Texas Rule of Appellate Procedure
68.4. See In re Schulman , 252 S.W.3d a t 408 n.22. Opin ion delivered July 31 , 2023. Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

( DO NOT PUBLISH )

## COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF T E XAS

JUDGMENT

JULY 31 , 2023

NO. 12

- 22

- 00223

- CR

DARRYL GLENN DAVIS , Appellant V. THE STATE OF TEXAS , Appellee

Appeal from the 114th District Court
of Smith County, Texas (Tr.Ct.No. 114

- 0988

- 21 ) THIS CAUSE came to be heard on the appellate record an d briefs filed
h erein, and the same being considered, it is the opinion of this court that there was no error in the judgment.
I t is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed , for which execution may issue, and that this
decision be certif ied to the court below for observance.
B y per curiam opinion

. Panel consisted of Wor then, C.J., Hoyle, J. and Neeley, J.