Jarente Mitchell v. State ( 2017 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-17-00112-CR
JARENTE MITCHELL APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY
TRIAL COURT NO. 1363506D
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MEMORANDUM OPINION1
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Appellant Jarente Mitchell appeals from the trial court’s judgment revoking
his community supervision, adjudicating his guilt for burglary of a habitation, and
sentencing him to five years’ confinement and a $190.99 fine. We modify the
judgment and the incorporated order to withdraw funds to delete the fine and, as
modified, affirm the trial court’s judgment. See Tex. R. App. P. 43.2(b).
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See Tex. R. App. P. 47.4.
Mitchell was indicted with burglary of a habitation. See Tex. Penal Code
Ann. § 30.02(a) (West Supp. 2017). On May 20, 2014, under the terms of a
plea-bargain agreement, Mitchell pleaded guilty to the offense, and the trial court
deferred adjudicating his guilt and placed him on community supervision for three
years. The trial court also imposed a nonsuspended $300 fine, which was an
additional term of the plea-bargain agreement. The conditions initially imposed
on Mitchell’s community supervision were supplemented and amended several
times. During the period of Mitchell’s community supervision, the State filed a
petition to proceed to a hearing to determine if Mitchell’s community supervision
should be revoked and his guilt adjudicated. The State alleged that Mitchell had
violated five conditions: (1) committed a new offense, (2) used marihuana on
nine occasions, (3) failed to report to his community-supervision officer twice,
(4) failed to pay the monthly supervision fee fourteen times, and (5) failed to pay
court costs, the fine, or attorney’s fees. The trial court heard evidence regarding
the State’s violation allegations, found each allegation to be true, and adjudged
Mitchell guilty of the underlying offense. Based on the same evidence adduced
at the adjudication hearing, the trial court revoked Mitchell’s community
supervision and sentenced him to five years’ confinement. In the judgment
adjudicating Mitchell’s guilt, the trial court imposed a fine of $190.99.
Mitchell timely filed a notice of appeal from the trial court’s judgment. See
Tex. R. App. P. 26.2(a). Mitchell’s court-appointed appellate counsel has filed a
motion to withdraw as counsel, accompanied by a brief in support of that motion.
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In the brief, counsel states that in his professional opinion, this appeal is frivolous
and without merit. Counsel’s brief and motion meet the requirements of Anders
v. California by presenting a professional evaluation of the record demonstrating
why there are no arguable grounds for relief. 386 U.S. 738, 744 (1967). Mitchell
did not respond to counsel’s brief or motion although both counsel and this court
advised him of his right to do so. See Kelly v. State, 436 S.W.3d 313, 319 (Tex.
Crim. App. 2014).
Once an appellant’s court-appointed attorney files a motion to withdraw on
the ground that an appeal is frivolous and fulfills the requirements of Anders, we
have a supervisory obligation to undertake an independent examination of the
record. See Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991);
Mays v. State, 904 S.W.2d 920, 922–23 (Tex. App.—Fort Worth 1995, no pet.).
In this evaluation, we consider the record and the arguments raised in the Anders
brief. See United States v. Wagner, 158 F.3d 901, 902 (5th Cir. 1998); In re
Schulman, 252 S.W.3d 403, 409 (Tex. Crim. App. 2008) (orig. proceeding). We
have carefully reviewed the record and counsel’s brief and have determined that
the trial court’s judgment requires modification with regard to the assessment of a
$190.99 fine that appears in the trial court’s written judgment adjudicating guilt
and the order to withdraw funds from Mitchell’s inmate trust account. The trial
court did not orally assess a fine during its oral pronouncement of Mitchell’s
sentence, but the written judgment adjudicating guilt includes the fine. Although
the trial court included a “Not Suspended” $300 fine in the order of deferred
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adjudication, the judgment adjudicating Mitchell’s guilt set aside the prior
deferred order, including the fine. See Taylor v. State, 131 S.W.3d 497, 499–500
(Tex. Crim. App. 2004). Of course, the trial court’s oral pronouncement of
sentence controls over its written judgment to the extent they conflict. Id. at 502.
Accordingly, because the trial court did not include a fine in its oral
pronouncement of sentence at Mitchell’s revocation hearing, we modify the trial
court’s judgment adjudicating guilt to delete the $190.99 fine, which must also be
removed from the incorporated order to withdraw funds from Mitchell’s inmate
trust account. See id.; Bowie v. State, No. 02-16-00379-CR, 2017 WL 2806320,
at *3 (Tex. App.—Fort Worth June 29, 2017, no pet.) (mem. op., not designated
for publication); Cox v. State, No. 02-13-00596-CR, 2015 WL 831544, *1 (Tex.
App.—Fort Worth Feb. 26, 2015, no pet.) (mem. op., not designated for
publication).
Except for this modification to the judgment, we agree with counsel that
this appeal is wholly frivolous and without merit. Our independent review of the
record reveals nothing further that might arguably support the appeal. See
Bledsoe v. State, 178 S.W.3d 824, 827–28 (Tex. Crim. App. 2005); see also
Meza v. State, 206 S.W.3d 684, 685 n.6 (Tex. Crim. App. 2006). Accordingly, we
grant counsel’s motion to withdraw, modify the trial court’s judgment and
incorporated order to withdraw funds to delete the fine, and affirm the judgment
as modified. See Bray v. State, 179 S.W.3d 725, 726 (Tex. App.—Fort Worth
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2005, no pet.) (en banc) (modifying judgment in Anders appeal and affirming
judgment as modified).
/s/ Lee Gabriel
LEE GABRIEL
JUSTICE
PANEL: SUDDERTH, C.J.; GABRIEL and KERR, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: December 28, 2017
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