      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-09-00134-CR



                                  Lee Vaughn Davis, Appellant

                                                 v.

                                  The State of Texas, Appellee


      FROM THE DISTRICT COURT OF BELL COUNTY, 264TH JUDICIAL DISTRICT
          NO. 63571, HONORABLE MARTHA J. TRUDO, JUDGE PRESIDING



                             MEMORANDUM OPINION


               A jury convicted appellant Lee Vaughn Davis of the offense of aggravated assault

with a deadly weapon. See Tex. Penal Code Ann. § 22.02(a)(2) (West Supp. 2009). Davis pleaded

true to enhancement paragraphs alleging three prior felony convictions, and punishment was assessed

at 99 years’ imprisonment.

               The jury heard evidence that, on June 9, 2008, Davis attacked his girlfriend,

Samantha Montgomery. Davis and Montgomery lived in an apartment complex in Harker Heights

with Montgomery’s six-year-old daughter, A.M., and five-year-old son, I.M. Montgomery testified

that, on the day of the alleged assault, she was planning to end her relationship with Davis. Fearing

how Davis might react to the break-up, Montgomery had sent A.M. to stay with Montgomery’s

friend Turquis Miller in a neighboring apartment unit. At the time, I.M. was staying with his

grandmother.
               Montgomery testified that she called Davis and told him that she needed to speak

with him. When he arrived home, Montgomery recalled, she told Davis that she wanted to end their

relationship. According to Montgomery, Davis responded by putting his hand around her neck

and choking her. Montgomery explained that after Davis let go of her, she “tried to escape out the

door,” but he grabbed her, pulled her back to him, and started slapping her. After that, Montgomery

testified, Davis pulled her into the kitchen, grabbed a steak knife, and held it up to her neck.

Montgomery was “terrified” at this point and “had to talk nice to him just for him to remove it.”

Montgomery further testified that after Davis put the knife down on the kitchen table, he picked up

a frying pan and threatened to hit her with it. He then told her that if the police came, “he was going

to kill me and kill himself.”

               Later, Montgomery continued, A.M. returned home and knocked on the door. Davis

began yelling at A.M., and Montgomery told her to return to Miller’s apartment. According to

Montgomery, after A.M. left, Davis resumed choking and hitting her.

               Miller testified that A.M. returned to her apartment crying hysterically. After

speaking with A.M. about why she was upset, and learning from a neighbor that he had heard noises

coming from Montgomery’s apartment, Miller became concerned and immediately called 911. The

police arrived shortly thereafter.

               Officer Tammy Pearson of the Harker Heights Police Department testified that when

she and another officer arrived at Montgomery’s apartment and announced their presence, “the door

flew open” and Montgomery ran past the officers and down the stairs. Pearson then saw Davis

in the apartment and attempted to find out from him what had happened. However, according to



                                                  2
Pearson, Davis was very angry and agitated and the officers had difficulty eliciting information from

him. Pearson then left Davis with the other officer and went to find Montgomery. She found her

downstairs outside Miller’s apartment and began asking her questions about the incident. During

their conversation, Davis “came walking very fast and in an aggressive manner over toward us and

he was demanding his keys from her.” Fearing that Montgomery was in danger, Pearson placed

herself between them. Pearson testified that Davis then told her that “I would have to shoot him.

He was going to make it a felony.” Pearson thought this meant that Davis either had a weapon on

him or he was about to assault either her or Montgomery. Pearson then radioed for additional

backup and Davis walked away.

                When additional officers arrived, Davis was arrested. Pearson testified that Davis

resisted arrest and that there was a struggle between Davis and another officer, Brad Duffy, that

resulted in Davis being taken to the ground. Eventually, the officers were able to secure Davis in

the patrol car. Duffy testified that during the transport to the police department, Davis told the

officers, “You all f***ed up this time. . . . you’re going to have to kill me before we get to the police

department.” Duffy added that Davis made “several other threats” while he was in the patrol car and

remained “very irate and agitated.”

                Davis’s court-appointed attorney has filed a motion to withdraw supported by a

brief concluding that the appeal is frivolous and without merit. The brief meets the requirements of

Anders v. California, 386 U.S. 738 (1967), by presenting a professional evaluation of the record

demonstrating why there are no arguable grounds to be advanced. 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); Jackson v. State, 485 S.W.2d 553 (Tex. Crim. App. 1972); Gainous

v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969). Davis received a copy of counsel’s brief and has

submitted a written response objecting to counsel’s motion to withdraw and asserting reasons why

he does not believe the appeal is frivolous.

               We have reviewed the record, counsel’s brief, and Davis’s written response and

find no reversible error. See Garner v. State, No. PD-0904-07, 2009 Tex. Crim. App. LEXIS 1739,

at *8 (Tex. Crim. App. Dec. 9, 2009); Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex. Crim. App.

2005). We agree with counsel that the appeal is frivolous and without merit. Counsel’s motion to

withdraw is granted.

               The judgment of conviction is affirmed.




                                               __________________________________________

                                               Bob Pemberton, Justice

Before Justices Patterson, Puryear and Pemberton

Affirmed

Filed: February 19, 2010

Do Not Publish




                                                 4
