Anthony Kizzee v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: April 1, 2025
• Docket: 01-23-00673-CR
• Status: Published

Opinion

Opinion issued April 1, 2025

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-23-00673-CR ——————————— ANTHONY KIZZEE, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 434th District Court Fort Bend County, Texas Trial Court Case No. 18-DCR-083621

MEMORANDUM OPINION

Appellant Anthony Kizzee pleaded guilty to the third-degree felony offense

of injury to a child causing bodily injury.1 Appellant also pleaded true to an

enhancement paragraph alleging a prior felony conviction, elevating the punishment

1 See TEX. PENAL CODE § 22.04(a)(3), (f). range for the offense to that of a second-degree felony.2 The trial court accepted

appellant’s pleas, deferred adjudication of appellant’s guilt, and placed appellant on

community supervision for ten years. The State later filed a motion to adjudicate

appellant’s guilt, alleging violations of the conditions of his community supervision,

including committing a new felony offense of aggravated assault. Appellant pleaded

not true to the alleged violations. Following a hearing, the trial court found the

allegations true, adjudicated appellant guilty of injury to a child causing bodily

injury, and sentenced appellant to sixteen years’ imprisonment in the Institutional

Division of the Texas Department of Criminal Justice. The sentence is within the

applicable range. Appellant timely filed a notice of appeal.

Appellant’s appointed counsel on appeal has filed a motion to withdraw, along

with an Anders brief stating that the record presents no reversible error and that,

therefore, the appeal is without merit and is frivolous. See Anders v. California, 386

U.S. 738 (1967). Counsel’s brief meets the Anders requirements by presenting a

professional evaluation of the record and supplying this Court with references to the

record and legal authority. See id. at 744; see also High v. State, 573 S.W.2d 807,

812 (Tex. Crim. App. 1978). Counsel indicates that she has thoroughly reviewed the

record and that she is unable to advance any grounds of error that warrant reversal.

2 See TEX. PENAL CODE § 12.42(a). 2 See Anders, 386 U.S. at 744; Mitchell v. State, 193 S.W.3d 153, 155 (Tex. App.—

Houston [1st Dist.] 2006, no pet.).

Appellant’s counsel has certified that she mailed a copy of the motion to

withdraw and the Anders brief to appellant and informed appellant of his right to file

a response and to access the record. See In re Schulman, 252 S.W.3d 403, 408 (Tex.

Crim. App. 2008). Furthermore, counsel certified that she sent appellant the form

motion for pro se access to the records for his response. See Kelly v. State, 436

S.W.3d 313, 322 (Tex. Crim. App. 2014). Appellant did not file a pro se response.

We have independently reviewed the entire record in this appeal and we

conclude that no reversible error exists in the record, that there are no arguable

grounds for review, and that therefore the appeal is frivolous. See Anders, 386 U.S.

at 744 (emphasizing that reviewing court—and not counsel—determines, after full

examination of proceedings, whether appeal is wholly frivolous); Garner v. State,

300 S.W.3d 763, 767 (Tex. Crim. App. 2009) (reviewing court must determine

whether arguable grounds for review exist); Bledsoe v. State, 178 S.W.3d 824, 826–

28 (Tex. Crim. App. 2005) (reviewing court is not to address merits of each claim

raised in Anders brief or pro se response after determining there are no arguable

grounds for review); Mitchell, 193 S.W.3d at 155. An appellant may challenge a

holding that there are no arguable grounds for appeal by filing a petition for

3 discretionary review in the Texas Court of Criminal Appeals. See Bledsoe, 178

S.W.3d at 827 n.6.

Although there is no reversable error in the case, we note the trial court's

judgment does not accurately reflect the proceedings when listing appellant’s plea

to the motion to adjudicate as “True.” The record, instead, demonstrates that

appellant pleaded “Not True” to the allegations in the motion to adjudicate. We have

the authority to reform a judgment to make the record speak the truth when we have

the necessary information before us to do so. See TEX. R. APP. P. 43.2(b); Bigley v.

State, 865 S.W.2d 26, 27–28 (Tex. Crim. App. 1993); French v. State, 830 S.W.2d

607, 609 (Tex. Crim. App. 1992); Nolan v. State, 39 S.W.3d 697, 698 (Tex. App.—

Houston [1st Dist.] 2001, no pet.). Accordingly, we modify the trial court’s judgment

to reflect that appellant pleaded “Not True” to the motion to adjudicate.

Accordingly, we affirm the judgment of the trial court as modified and grant

counsel’s motion to withdraw.3 See TEX. R. APP. P. 43.2(a). Attorney Mandy Miller

must immediately send the required notice and file a copy of that notice with the

Clerk of this Court. See TEX. R. APP. P. 6.5(c). We dismiss any other pending

motions as moot.

3 Appointed counsel still has a duty to inform appellant of the result of this appeal and that he may, on his own, pursue discretionary review in the Texas Court of Criminal Appeals. See Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim. App. 2005). 4 PER CURIAM

Panel consists of Justices Guerra, Caughey, and Morgan.

Do not publish. TEX. R. APP. P. 47.2(b).