Lorenzo Demarkas Patton v. State ( 2019 )

NOS. 12-18-00085-CR
12-18-00086-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
LORENZO DEMARKAS PATTON, § APPEALS FROM THE 392ND
APPELLANT
V. § JUDICIAL DISTRICT COURT
THE STATE OF TEXAS,
APPELLEE § HENDERSON COUNTY, TEXAS
MEMORANDUM OPINION
PER CURIAM
Lorenzo Demarkas Patton appeals his convictions for bail jumping and failure to appear
and possession of a controlled substance. 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). We modify and affirm as modified.
BACKGROUND
Appellant was charged by indictment with bail jumping and failure to appear enhanced by
two prior felonies and manufacture or delivery of a controlled substance enhanced by two prior
felonies. Pursuant to a plea agreement with the State, he pleaded “guilty” to bail jumping and
failure to appear and possession of a controlled substance enhanced by one prior felony. After a
hearing, the trial court assessed Appellant’s punishment at imprisonment for ten years in the bail
jumping and failure to appear case and twenty years in the possession of a controlled substance
case. These appeals followed.
ANALYSIS PURSUANT TO ANDERS V. CALIFORNIA
Appellant’s appellate counsel filed a brief in compliance with Anders v. California and
Gainous v. State. Appellant’s counsel relates that she diligently reviewed the record and found
no reasonable or plausible nonfrivolous issues for our review. In compliance with High v. State,
573 S.W.2d 807 (Tex. Crim. App. [Panel Op.] 1978), counsel’s brief contains a professional
evaluation of the record demonstrating why there are no arguable grounds to be advanced.1
We considered counsel’s brief and conducted our own independent review of the record.
Id. at 811. We have found no reversible error.
RESTITUTION
In reviewing the record, we observed that the trial court ordered restitution in the
possession of a controlled substance case without authority or a factual basis in the record. Neither
party has requested that we reform the incorrect judgment, but our authority to reform an incorrect
judgment is not dependent on the request of any party. Rhoten v. State, 299 S.W.3d 349, 356
(Tex. App.—Texarkana 2009, no pet.). We have the authority to reform a judgment in an Anders
appeal and to affirm that judgment as reformed. See TEX. R. APP. P. 43.2(b); Bray v. State, 179
S.W.3d 725, 726 (Tex. App.—Fort Worth 2005, no pet.).
Due process requires a factual basis in the record for a restitution amount. Cartwright v.
State, 605 S.W.2d 287, 289 (Tex. Crim. App. [Panel Op.] 1980). A sufficiency claim regarding a
restitution order or an amount of restitution need not be preserved for appellate review at the trial
level. Mayer v. State, 309 S.W.3d 552, 555 (Tex. Crim. App. 2010). A trial court may order a
defendant to reimburse a law enforcement agency for laboratory costs associated with a narcotics
seizure, but only as a condition of community supervision. TEX. CODE CRIM. PROC. ANN. art.
42A.301(b)(18) (West 2018); Aguilar v. State, 279 S.W.3d 350, 353 (Tex. App.—Austin 2007,
no pet.).
Here, the trial court ordered Appellant to “make restitution to the Department of Public
Safety for $180 for a lab fee.” Because we find no factual basis in the record for this restitution
1
In compliance with Kelly v. State, Appellant’s counsel provided Appellant with a copy of the brief, notified
Appellant of her 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. 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 has expired and no pro se brief
has been filed.
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amount, and because the trial court lacked authority to order the restitution, we conclude that the
judgment in the possession of a controlled substance case should be modified to reflect a restitution
amount of $0.00. See TEX. R. APP. P. 43.2(b); Bray, 179 S.W.3d at 726; Cartwright, 605 S.W.2d
at 289; Aguilar, 279 S.W.3d at 350.
CONCLUSION
As required by Anders and 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, we agree with counsel that the appeal is wholly frivolous. Accordingly,
we grant Appellant’s counsel’s motion for leave to withdraw. We modify the trial court’s
judgment in trial court cause number CR17-0874-392 to reflect a restitution amount of $0.00, and
we affirm the judgment as modified. We affirm the trial court’s judgment in trial court cause
number CR17-0873-392.
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 TEX. R. APP. P. 48.4; In re Schulman, 252 S.W.3d at 411 n.35. Should
Appellant wish to seek review of these cases 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
pro se petition for discretionary review. Any petition for discretionary review must be filed within
thirty days from the date of this court’s judgment or the date the last timely motion for rehearing
was overruled by this court. See TEX. R. APP. P. 68.2(a). Any petition for discretionary review
must be filed with the Texas Court of Criminal Appeals. See TEX. R. APP. P. 68.3(a). Any petition
for discretionary review should comply with the requirements of Rule 68.4 of the Texas Rules of
Appellate Procedure. See In re Schulman, 252 S.W.3d at 408 n.22.
Opinion delivered March 20, 2019.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
(DO NOT PUBLISH)
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COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
MARCH 20, 2019
NO. 12-18-00085-CR
LORENZO DEMARKAS PATTON,
Appellant
V.
THE STATE OF TEXAS,
Appellee
Appeal from the 392nd District Court
of Henderson County, Texas (Tr.Ct.No. CR17-0873-392)
THIS CAUSE came to be heard on the appellate record and brief filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court below
for observance.
By per curiam opinion.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
MARCH , 2019
NO. 12-18-00086-CR
LORENZO DEMARKAS PATTON,
Appellant
V.
THE STATE OF TEXAS,
Appellee
Appeal from the 392nd District Court
of Henderson County, Texas (Tr.Ct.No. CR17-0874-392)
THIS CAUSE came on to be heard on the appellate record and the brief
filed herein, and the same being inspected, it is the opinion of the Court that the judgment of the
trial court below should be modified and, as modified, affirmed.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be modified to reflect a restitution amount of $0.00; and as modified, the trial
court’s judgment is affirmed; and that this decision be certified to the trial court below for
observance.
By per curiam opinion.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.