Tywan Willie Phillips v. The State of Texas — Memorandum Opinion by Justice Hoyle

NO. 12-26-00151-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
TYWAN WILLIE PHILLIPS,
APPELLANT
V.
THE STATE OF TEXAS,
APPELLEE
§
§
§
APPEAL FROM THE 478TH
JUDICIAL DISTRICT COURT
BELL COUNTY, TEXAS
MEMORANDUM OPINION
Tywan 	Willie 	Phillips 	appeals 	his 	conviction 	for 	aggravated 	assault 	following
the revocation of his community supervision. 	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, 436 S.W.2d 137 (Tex. Crim. App. 1969). In his brief, he also raises two issues relating
to non-reversible error.1 We modify the judgment and affirm as modified.
B ACKGROUND
Appellant was charged by indictment with aggravated assault. 	Following a jury trial,
Appellant was convicted of the charged offense. 	The jury assessed punishment of three years’
imprisonment, but recommended suspension of the sentence. 	The trial court suspended the
three-year sentence and placed Appellant on community supervision for six years.
1 When this type of brief is filed, i.e., an Anders brief which also asserts non-reversible error—we conduct
an independent review of the record for reversible error involving the defendant’s conviction and sentence and then
treat the briefed, non-reversible error as a merits issue. See Cummins v. State, 646 S.W.3d 605, 612 (Tex. App.–
Waco 2022, pet. ref’d).

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The State subsequently filed a motion to revoke Appellant’s community suspension, in
which it alleged that Appellant violated the conditions thereof in sixteen separate ways. 	At a
hearing on March 13, 2026, Appellant pleaded “not true” to allegations A, B, and C, but pleaded
“true” to allegations D, E, F, G, H, I, J, K, L, M, N, O, and P. 	Following the presentation of
evidence, the State abandoned allegation B. At the conclusion of the hearing, the trial court
found allegations A and C in the State’s motion, as well as the admitted allegations D through P,
to 	be 	“true,” 	revoked 	Appellant’s 	community 	supervision, 	and 	sentenced 	Appellant 	to
imprisonment for three years. This appeal followed.
ANALYSIS PURSUANT TO
ANDERS V . CALIFORNIA
Appellant’s counsel filed a brief 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. 	He further relates that he is well-acquainted with the facts in this case. 	In
compliance with Anders, Gainous, and High v. State, 573 S.W.2d 807 (Tex. Crim. App. [Panel
Op.] 1978), the brief presents a chronological summation of the procedural history of the case
and further states that Appellant’s counsel is unable to raise any arguable issues of reversible
error on appeal.2 We likewise conducted an independent review of the record for reversible error
and found none.
WRITTEN JUDGMENT ’S RECITATION OF APPELLANT ’S PLEAS
In his first issue, Appellant argues that the judgment incorrectly reflects that he pleaded
“true” to each of the allegations in the State’s motion to revoke his community supervision. We
agree.
An appellate court has the power to correct and reform a trial court judgment to make the
record “speak the truth” when it has the necessary data and information before it to do so. Cobb
v. State, 95 S.W.3d 664, 668 (Tex. App.–Houston [1st Dist.] 2002, no pet.). 	Here, the record
2 In compliance with Kelly v. State, Appellant’s counsel provided Appellant with a copy of the brief,
notified Appellant of his motion to withdraw as counsel, informed Appellant of his right to file a pro se response,
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). Appellant was given time to file his own brief. The time for filing such a brief
expired and no pro se brief has been filed.

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reflects that Appellant pleaded “true” only to allegations D through P, but he pleaded “not true”
to allegations A, B, and C. However, the trial court’s written judgment sets forth generally that
Appellant pleaded “true” to the Motion to Revoke. Accordingly, we conclude that the judgment
should be modified to accurately reflect Appellant’s pleas to the allegations in the Motion to
Revoke. Consequently, we sustain Appellant’s first issue.
DEADLY WEAPON FINDING AFTER REVOCATION OF COMMUNITY S UPERVISION
In his second issue, Appellant argues that the judgment revoking his community
supervision erroneously includes an affirmative deadly-weapon finding, where no such finding
was present in the original judgment of conviction.
Applicable Law
A finding that a defendant used or exhibited a deadly weapon during the commission of a
felony offense has two consequences. 	First, the defendant in such a case is not eligible for
probation unless it is recommended by the jury. 	See TEX. C ODE C RIM. P ROC . ANN . art.
42A.054(b). Second, an affirmative finding as to the use of a deadly weapon results in a delay
of the defendant’s parole eligibility date. TEX. GOV ’T C ODE ANN . § 508.149.
Where the jury is the trier of fact, the trial court may not properly enter that they have
made an affirmative finding concerning the defendant’s use or exhibition of a deadly weapon or
firearm during the commission of the offense unless:
1) the deadly weapon or firearm has been specifically pled as such (using the nomenclature
“deadly weapon”) in the indictment[;]
2) where not specifically pled in “1)” above as a deadly weapon or firearm, the weapon pled is per
se a deadly weapon or a firearm; or,
3) a special issue is submitted and answered affirmatively.
Crumpton v. State, 301 S.W.3d 663, 672 (Tex. Crim. App. 2009). 	However, once the
affirmative finding is made by the jury, the Code of Criminal Procedure imposes a non-
discretionary duty on the trial court to enter the finding in the judgment.3 	TEX. C ODE C RIM.
3 The trial judge in a bench trial has the discretion to (1) determine whether to make an affirmative deadly
weapon finding, even if supported by the evidence, and (2) decline to enter that deadly-weapon finding in the
judgment. Guthrie-Nail v. State, 506 S.W.3d 1, 4-6 (Tex. Crim. App. 2015); see Pryor v. State, No. 14-15-00057-
CR, 2015 WL 6768673, at *1 (Tex. App.–Houston [14th Dist.] Nov. 5, 2015, no pet.) (mem. op., not designated for
publication) (entry of “N/A” in judgment, following a bench trial, is explicit determination that deadly weapon
finding not being made). And when a trial court “forgoes an affirmative finding regarding a deadly weapon at the

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P ROC . ANN . art. 42A.054(c); see Asberry v. State, 813 S.W.2d 526, 530 (Tex. App.—Dallas
1991, pet. ref’d) (noting that to make the record “speak the truth,” appellate courts are permitted
to reform judgments to include a jury’s affirmative finding of the use of a deadly weapon).
Analysis
The indictment for this offense alleged that Appellant “intentionally, knowingly, and
recklessly cause[d] bodily injury to George Murphy by shooting George Murphy with a firearm,
and the defendant used or exhibited a deadly weapon, namely a firearm, during commission of
the assault.” The jury made a deadly-weapon finding as a matter of law by adjudicating
Appellant “guilty” as charged in the indictment, which expressly pleaded the use of a deadly
weapon, specifically, a firearm. 	See Roots v. State, 419 S.W.3d 719, 724 (Tex. App.—Fort
Worth 2013, pet. ref’d); Crumpton, 301 S.W.3d at 672. 	However, the written judgment of
conviction by jury from March 26, 2025, excludes a deadly weapon finding (reading “N/A” in
the space for such a finding). 	Conversely, the judgment revoking Appellant’s community
supervision states “Yes, a firearm,” in the space for deadly weapon findings.
Appellant cites to Hall v. State, No. 12-19-00344-CR, 2020 WL 3026341 (Tex. App.—
Tyler June 5, 2020, no pet.) (mem. op., not designated for publication) in support of his
contention that the trial court lacked authority to enter a deadly weapon finding in the judgment
revoking Appellant’s community supervision. 	However, Hall involved a bench trial, and the
trial court announced at the original sentencing hearing that it was deliberately withholding a
deadly weapon finding from its judgment of conviction, only to enter such a finding in a later
judgment revoking Hall’s probation. Id. at *3.
The facts surrounding Appellant’s conviction and revocation more closely resemble those
of Shannon v. State, 723 S.W.2d 322 (Tex. App.—Austin 1987, pet. ref’d, untimely filed). 	A
jury found Shannon guilty of aggravated robbery, and the court’s charge instructed the jury that
before it could find Shannon guilty of aggravated assault, it had to find he used a firearm. Id. at
323. 	Based upon the jury’s recommendation, the trial court suspended Shannon’s sentence and
placed him on probation but did not enter the jury’s affirmative deadly weapon finding in the
original judgment. Id. Only later, upon revoking Shannon’s probation, did the trial court enter
time of the judgment and suspends the sentence, it has no authority to enter such finding in connection with the
subsequent revocation of community supervision.” Rivers v. State, 99 S.W.3d 659, 660 (Tex. App.–Waco 2003, no
pet.) (citing Ex parte Shaw, 724 S.W.2d 75, 77 (Tex. Crim. App. 1987) (orig. proceeding)). However, this case was
tried to a jury, and the jury also determined Appellant’s sentence and recommended probation.

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the deadly weapon finding in the judgment. Id. The Third Court of Appeals held the trial court
did not err by entering the affirmative finding only upon revocation, because the purpose for the
entry on the judgment is to inform the Board of Pardons and Paroles “which prisoners are to
receive the special time computation that results from the finding.” Id. 	Therefore, the trial
court’s failure to enter the finding in the judgment was “irrelevant” as long as Shannon was on
probation, and there was no need for the entry of the finding until revocation. Id. at 323; see also
Galloway v. State, 916 S.W.2d 69, 70 (Tex. App.—Houston [1st Dist.] 1996, pet. ref’d); Allen v.
State, No. 05-94-00902-CR, 1996 WL 45912, at *2 (Tex. App.—Dallas Jan. 26, 1996, no pet.)
(mem. op., not designated for publication).
We conclude that the trial court did not err by entering the jury’s affirmative deadly-
weapon finding at the time it revoked Appellant’s community supervision. We overrule
Appellant’s second issue.
CONCLUSION
As required by Stafford v. State, 813 S.W.2d 503 (Tex. 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) (orig. proceeding). 	We carried the motion for consideration with the merits.
Having done so and finding no reversible error, we grant Appellant’s counsel’s motion for leave
to withdraw.
Having determined that there is error in the judgment revoking Appellant’s community
supervision, we modify the judgment by replacing the finding that Appellant generally pleaded
“true” to the allegations in the State’s motion to revoke community supervision with a finding
that Appellant pleaded “true” to allegations D through P but pleaded “not true” to allegations A,
B, and C. We affirm the judgment as modified.
As a result of our disposition of this case, Appellant’s counsel has a duty to, within five
days of the date of this opinion, send a copy of the opinion and judgment to Appellant and advise
him of his right to file a petition for discretionary review. See T EX. R. APP . P. 48.4; Schulman,
252 S.W.3d at 411 n.35. Should Appellant wish to seek review of this case by the Texas Court
of Criminal Appeals, he must either retain an attorney to file a petition for discretionary review
on his behalf, or he must file a petition for discretionary 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 TEX. R. APP . P.

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68.2. 	Any petition for discretionary review must be filed with the Texas Court of Criminal
Appeals. See T EX. R. APP . P. 68.3(a). Any petition for discretionary review should comply with
the requirements of Texas Rule of Appellate Procedure 68.4. See Schulman, 252 S.W.3d at 408
n.22.
B RIAN H OYLE
Justice
Opinion delivered October 21, 2026.
Panel consisted of Worthen, C.J., Hoyle, J., and Davis, J.
(DO NOT PUBLISH)

COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
OCTOBER 21, 2026
NO. 12-26-00151-CR
TYWAN WILLIE PHILLIPS,
Appellant
V.
THE STATE OF TEXAS,
Appellee
Appeal from the 478th District Court
of Bell County, Texas (Tr.Ct.No. 24DCR89579)
THIS CAUSE came to be heard on the appellate record and the briefs filed
herein, and the same being considered, it is the opinion of this court that the judgment should be
modified and as modified, affirmed.
It is therefore ORDERED, ADJUDGED, and DECREED that the judgment revoking
Appellant Tywan Willie Phillips’s community supervision is modified by replacing the finding
that Appellant generally pleaded “true” to the allegations in the State’s motion to revoke
community supervision with a finding that Appellant pleaded “true” to allegations D through P

but pleaded “not true” to allegations A, B, and C, the judgment of the trial court is affirmed as
modified; and that this decision be certified to the court below for observance.
Brian Hoyle, Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Davis, J.