Dexter Deuwan Mitchell v. State

Opinion

NO. 07-05-0468-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

SEPTEMBER 26, 2006

______________________________

DEXTER DEUWAN MITCHELL, ⁽¹⁾ APPELLANT

V.

THE STATE OF TEXAS, APPELLEE _________________________________

FROM THE 47^TH DISTRICT COURT OF POTTER COUNTY;

NO. 48,922-A; HONORABLE HAL MINER, JUDGE _______________________________

Before REAVIS and CAMPBELL and HANCOCK, JJ.

MEMORANDUM OPINION

Appellant, Dexter Deuwan Mitchell, appeals from a judgment revoking community supervision and imposing sentence pursuant to a conviction for attempted aggravated assault. Appellant's counsel has filed a brief in compliance with Anders v. California, 386 U.S. 738, 744-45, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and Gainous v. State, 436 S.W.2d 137, 138 (Tex.Crim.App. 1969). We affirm.

Appellant entered a plea of guilty to attempted aggravated assault on September 8, 2004. The trial court judge found that the evidence substantiated appellant's guilt, accepted the plea, found appellant guilty, and sentenced appellant to confinement for 10 years in the Institutional Division of the Texas Department of Criminal Justice. The confinement portion of the sentence was suspended and appellant was placed on community supervision for five years.

The State filed an amended motion to revoke appellant's community supervision which was heard on December 7, 2005. Appellant pled not true to three of the nine alleged violations of community supervision but pled true to the remaining six violations. After hearing testimony, the trial judge found that appellant had committed six violations of his community supervision, revoked the order placing appellant on community supervision, and ordered that appellant serve the confinement portion of his sentence in the State Jail Division of the Texas Department of Criminal Justice. Appellant filed a notice of appeal.

Appellant's counsel has filed a brief, in compliance with Anders and Gainous, stating that she has diligently reviewed the appellate record and is of the opinion that the record reflects no reversible error upon which an appeal can arguably be predicated. Counsel thus concludes that the appeal is frivolous. Counsel's brief discusses why, under the controlling authorities, there is no reversible error in the trial court proceedings and judgment. See High v. State, 573 S.W.2d 807, 813 (Tex.Crim.App. 1978).

Counsel has attached an exhibit showing that a copy of the Anders brief has been forwarded to appellant and that counsel has appropriately advised appellant of his right to review the record and file a pro se response to counsel's motion and brief. The clerk of this court has also advised appellant by letter of his right to file a response to counsel's brief. Appellant has not filed a response.

We have made an independent examination of the record to determine whether there are any non-frivolous grounds upon which an appeal could arguably be founded. See Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988); Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim.App. 1991). We have found no such grounds.

Appellant's counsel has moved for leave to withdraw. See Johnson v. State, 885 S.W.2d 641, 645 (Tex.App.-Waco 1994, writ ref'd). We carried the motion for consideration with the merits of the appeal. Having done so and finding no reversible error, appellant's counsel's motion to withdraw is granted and the trial court's judgment is affirmed.

Mackey K. Hancock

Justice

Do not publish.

1. This Court will follow the spelling of appellant's name as it appears in the trial court records.

dException Locked="false" Priority="63" SemiHidden="false" UnhideWhenUsed="false" Name="Medium Shading 1"/>

NO. 07-10-0311-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

SEPTEMBER 21, 2010

______________________________

VERNON LEE MCBETH, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

_________________________________

FROM THE 108^TH DISTRICT COURT OF POTTER COUNTY;

NO. 57,343-E; HONORABLE DOUGLAS WOODBURN, JUDGE

_______________________________

Before CAMPBELL and HANCOCK and PIRTLE, JJ.

ABATEMENT AND REMAND

            Pursuant to a plea bargain in 2009, Appellant, Vernon Lee McBeth, was granted deferred adjudication for the offense of theft, enhanced, and placed on community supervision for five years and assessed a $250 fine.  The following year, the State moved to proceed with an adjudication of guilt alleging that Appellant violated three of the terms and conditions of his community supervision.

            At the hearing on the State's motion to proceed, Appellant entered a plea of true to the allegations in the motion.  The trial court heard testimony then adjudicated Appellant guilty of the original offense and sentenced him to eighteen years confinement and assessed a $500 fine.  Appellant perfected this appeal.

The clerk's record was filed on September 13, 2010, and it contains the Trial Court=s Certification of Defendant=s Right of Appeal.  The options on the form "is a plea-bargain case, and the defendant has No right of appeal" and "the defendant has waived the right of appeal" appear to have been marked and then crossed out.  No other options are checked.  Thus, the certification is defective.  See Dears v. State, 154 S.W.3d 610, 614 (Tex.Crim.App. 2005).  See also Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b) (Vernon Supp. 2009) (amended in 2007 to permit an appeal from an adjudication of guilt in the same manner as a revocation hearing);^[1] Hargesheimer v. State, 182 S.W.3d 906, 911-12 (Tex.Crim.App. 2006).  

Consequently, we abate this appeal and remand this cause to the trial court for further proceedings.  Upon remand, the trial court shall utilize whatever means necessary to secure a proper Trial Court=s Certification of Defendant=s Right of Appeal in compliance with Rule 25.2(d) in each cause referenced herein.  Once properly completed and executed, the certification shall be included in supplemental clerk's record.  See Tex. R. App. P. 34.5(c)(2).  The trial court shall cause the supplemental clerk's record to be filed with the Clerk of this Court by November 5, 2010.  This order constitutes notice to all parties, pursuant to Rule 37.1 of the Texas Rules of Appellate Procedure, of the defective certification.  If a supplemental clerk's record containing a proper certification is not filed in accordance with this order, this cause will be referred to the Court for dismissal.  See Tex. R. App. P. 25.2(d).

In abating this appeal we note that the Clerk's Record reflects a judgment signed July 16, 2010.  The summary portion of the judgment reflects "Court Costs: see attached" and the following page contained in the record is a certified bill of costs, dated July 19, 2010, containing a reference to attorney's fees for Appellant's court-appointed attorney totaling $2,000.00.^[2]  The judgment further orders Appellant to pay all court costs "as indicated above."  A review of the Reporter's Record does not reveal any evidence pertaining to Appellant's ability to reimburse attorney's fees, nor does it contain a finding by the Court in accordance with Article 26.05(g) of the Texas Code of Criminal Procedure.

A judgment ordering the reimbursement of court-appointed attorney's fees without sufficient evidence of a defendant's ability to pay can constitute error cognizable on appeal.   See Mayer v. State, 309 S.W.3d 552 (Tex.Crim.App. 2010).  Accordingly, we further direct the trial court to either execute a corrected judgment or provide this Court with a transcript of the proceeding wherein the Court has determined that Appellant has financial resources that enable him to offset in part or in whole the costs of legal services provided.  The trial court shall cause either a supplemental clerk's record containing the corrected judgment or a reporter's record of the requested proceedings to be filed with the Clerk of this Court by November 5, 2010.       

It is so ordered.

Per Curiam

---

^[1]See Act of May 28, 2007, 80th Leg., R.S., ch. 1308 § 5(b), 2007 Tex. Gen. Laws 4395, 4397.

^[2]Although we are unable to explain how the trial judge signed a judgment on July 16, 2010, which contained an attachment that was not created until July 19, 2010, the Clerk's Record does represent the Bill of Costs as being the attachment referred to in the judgment of the court.