Lamont Lankeen Mitchell v. the State of Texas ( 2022 )

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-22-00001-CR
LAMONT LANKEEN MITCHELL, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 8th District Court
Hopkins County, Texas
Trial Court No. 2128583
Before Morriss, C.J., Stevens and van Cleef, JJ.
Opinion by Chief Justice Morriss
OPINION
Following his open plea of guilt, Lamont Lankeen Mitchell was convicted of assault on a
public servant, a third-degree felony. See TEX. PENAL CODE ANN. § 22.01(b)(1) (Supp.). After
Mitchell pled true to the State’s punishment-enhancement allegation, he was sentenced to twelve
years’ imprisonment. Mitchell appeals.
Mitchell’s attorney on appeal has filed a brief stating that he has reviewed the record and
has found no genuinely arguable issues that could be raised. The brief sets out the procedural
history of the case and summarizes the evidence elicited during the trial court proceedings.
Since counsel has provided a professional evaluation of the record, demonstrating why there are
no arguable grounds to be advanced, he has met the requirements of Anders v. California, 386
U.S. 738, 743–44 (1967). See In re Schulman, 252 S.W.3d 403, 406 (Tex. Crim. App. 2008)
(orig. proceeding); Stafford v. State, 813 S.W.2d 503, 509–10 (Tex. Crim. App. 1991); High v.
State, 573 S.W.2d 807, 812–13 (Tex. Crim. App. [Panel Op.] 1978). Counsel also filed a motion
with this Court seeking to withdraw as counsel in this appeal.
On May 6, 2022, counsel mailed Mitchell a copy of the brief, the motion to withdraw,
and a motion for pro se access to the appellate record lacking only Mitchell’s signature. Mitchell
was informed of his right to review the record and file a pro se response. On May 19, 2022, this
Court received Mitchell’s motion for pro se access to the record. On May 24, 2022, this Court
forwarded a paper copy of the appellate record to Mitchell and advised Mitchell that his pro se
response was due on or before July 8, 2022. On July 25, 2022, this Court further informed
Mitchell that the case would be set for submission on the briefs on August 15, 2022. We
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received neither a pro se response from Mitchell nor a motion requesting an extension of time in
which to file such a response.
We have reviewed the entire appellate record and have independently determined that no
reversible error exists. See Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim. App. 2005).
However, appellate courts are authorized to reform judgments and affirm as modified in Anders
cases involving non-reversible error. See Getts v. State, 155 S.W.3d 153, 155 (Tex. Crim. App.
2005) (affirming appellate court’s reformation of trial court’s judgment in Anders case); Bray v.
State, 179 S.W.3d 725, 729–30 (Tex. App.—Fort Worth 2005, no pet.) (reforming trial court’s
judgment in Anders case because abatement “would require the trial court to do a useless task—
appoint counsel to raise an issue of law that we have previously ruled on” and affirming the
judgment, as modified); see also R.J.O. v. Tex. Dep’t of Fam. & Protective Servs., No. 03-13-
00478-CV, 2013 WL 6060778, at *1 (Tex. App.—Austin Nov. 13, 2013, no pet.) (mem. op.)
(reforming trial court’s final decree to remove a statutory ground for termination and affirming
judgment, as modified, in Anders case); Sheddan v. State, No. 12-12-00391-CR, 2013 WL
3377416, at *1 (Tex. App.—Tyler July 3, 2013, no pet.) (mem. op., not designated for
publication) (reforming trial court’s judgment to reflect plea of “true” to enhancement paragraph
and affirming judgment, as modified, in Anders case); Thomas v. State, No. 13-12-00283-CR,
2012 WL 6680143, at *1–2 (Tex. App.—Corpus Christi Dec. 20, 2012, no pet.) (mem. op., not
designated for publication) (deleting a $500.00 fine from appellant’s administrative fees and
affirming the judgment, as modified, in Anders case); McBreen v. State, Nos. 05-03-01424-CR,
05-03-01425-CR, 2005 WL 3032496, at *4 (Tex. App.—Dallas Nov. 14, 2005, no pet.) (mem.
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op., not designated for publication) (modifying trial court’s written judgment to reflect the
sentence orally pronounced and affirming the judgment, as modified, in an Anders case); Burnett
v. State, No. 06-00-00147-CR, 2001 WL 82520, at *1–2 (Tex. App.—Texarkana Feb. 1, 2001,
no pet.) (mem. op., not designated for publication) (reforming trial court’s judgment to delete
condition of parole and affirming judgment, as modified, in an Anders case); Adams v. State, No.
14-97-00553-CR, 1999 WL 144793, at *1–2 (Tex. App.—Houston [14th Dist.] Mar. 18, 1999,
no pet.) (mem. op., not designated for publication) (reforming judgment to reflect that appellant
was convicted of third-degree felony, rather than second-degree felony, noting that this error
“does not entitle appellant to reversal of his conviction” and affirming judgment, as modified, in
Anders case).1
The record shows that the judgment and bill of costs assessed Mitchell a time payment
fee of $15.00. The Texas Court of Criminal Appeals has recently concluded that a time payment
fee like the one imposed here “must indeed be struck for being prematurely assessed because a
defendant’s appeal suspends the duty to pay court costs and therefore suspends the running of the
clock for the purposes of the time payment fee.” Dulin v. State, 620 S.W.3d 129, 129 (Tex.
Crim. App. 2021). “As a consequence, even now, assessment of the time payment fee in this case
would be premature because appellate proceedings are still pending.” Id. Pursuant to Dulin, we
strike the time payment fee “in [its] entirety, without prejudice to [it] being assessed later if,
more than 30 days after the issuance of the appellate mandate, the defendant has failed to
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“Although unpublished opinions have no precedential value, we may take guidance from them ‘as an aid in
developing reasoning that may be employed.’” Rhymes v. State, 536 S.W.3d 85, 99 n.9 (Tex. App.—Texarkana
2017, pet. ref’d) (quoting Carrillo v. State, 98 S.W.3d 789, 794 (Tex. App.—Amarillo 2003, pet. ref’d)).
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completely pay any fine, court costs, or restitution” owed. Id. at 133. We modify the judgment
and the bill of costs by deleting the time payment fee.
In the Anders context, once we determine that the appeal is without merit, we must either
dismiss the appeal or affirm the trial court’s judgment. See Anders, 386 U.S. 738. Thus, we
affirm the trial court’s judgment, as modified.2
Josh R. Morriss, III
Chief Justice
Date Submitted: August 15, 2022
Date Decided: August 17, 2022
Publish
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Since we agree that this case presents no reversible error, we also, in accordance with Anders, grant counsel’s
request to withdraw from further representation of appellant in this case. See Anders, 386 U.S. at 744. No substitute
counsel will be appointed. Should appellant desire to seek further review of this case by the Texas Court of
Criminal Appeals, appellant must either retain an attorney to file a petition for discretionary review or file a pro se
petition for discretionary review. Any petition for discretionary review (1) must be filed within thirty days from
either the date of this opinion or the date on which the last timely motion for rehearing was overruled by this Court,
see TEX. R. APP. P. 68.2, (2) must be filed with the clerk of the Texas Court of Criminal Appeals, see TEX. R. APP.
P. 68.3, and (3) should comply with the requirements of Rule 68.4 of the Texas Rules of Appellate Procedure, see
TEX. R. APP. P. 68.4.
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