Kennon Shaw v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: April 2, 2024
• Docket: 07-23-00305-CR
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-23-00305-CR

KENNON SHAW, APPELLANT

V.

THE STATE OF TEXAS

On Appeal from the 364th District Court Lubbock County, Texas Trial Court No. DC-2022-CR-0694, Honorable William R. Eichman II, Presiding

April 2, 2024 MEMORANDUM OPINION Before QUINN, C.J., and DOSS and YARBROUGH, JJ.

Having been charged by indictment with murder,1 Appellant Kennon Shaw entered

an open plea of guilty to shooting and killing a bouncer at the Angelwitch Cabaret in

Lubbock, Texas. Punishment was tried to the court which, following Appellant’s plea of

true to two enhancement paragraphs, imposed a sentence of confinement in prison for

1 See TEX. PENAL CODE ANN. § 19.02(b)(1). life. This appeal followed. Appellant’s counsel has filed a motion to withdraw, supported

by an Anders2 brief. We grant counsel’s motion and affirm the judgment of the trial court.

Appellant’s counsel has certified that she conducted a conscientious examination

of the record and, in her opinion, the record reflects no reversible error upon which an

appeal can be predicated. Anders, 386 U.S. at 744; In re Schulman, 252 S.W.3d 403,

406 (Tex. Crim. App. 2008). Via an explanatory letter to Appellant, counsel provided

Appellant with her motion to withdraw, a copy of her Anders brief, a copy of the record,

and a pro se motion for access to the appellate record if needed. See Kelly v. State, 436

S.W.3d 313, 319–20 (Tex. Crim. App. 2014) (specifying counsel’s obligations on the filing

of a motion to withdraw supported by an Anders brief). By letter, this Court also advised

Appellant of the right to file a pro se response to counsel’s Anders brief. Appellant has

not filed a response or otherwise communicated with the Court.

We have carefully reviewed counsel’s Anders brief and conducted an independent

review of the record to determine whether there are any nonfrivolous issues that were

preserved in the trial court which might support an appeal. See Penson v. Ohio, 488 U.S.

75, 80, 109 S. Ct. 346, 102 L. Ed. 2d 300 (1988); In re Schulman, 252 S.W.3d at 409;

Gainous v. State, 436 S.W.2d 137, 138 (Tex. Crim. App. 1969). Following our review of

the appellate record and counsel’s brief, we conclude there are no grounds for appellate

review that would result in reversal of Appellant’s conviction or sentence.

2 See Anders v. California, 386 U.S. 738, 744 (1967).

2 Modification of the Judgment

The judgment contains one matter that we have authority to correct. The judgment

orders in part, “An additional fee will be added if the Court Costs are not paid within 31

days of this judgment. The fee will be $25 if the offense date is before January 1, 2020,

and $15 if the offense date is January 1, 2020 and after.”

Texas Code of Criminal Procedure article 102.030(a) provides: “A person

convicted of an offense shall pay a reimbursement fee of $15 if the person: (1) has been

convicted of a felony or misdemeanor; and (2) pays any part of a fine, court costs, or

restitution, or another reimbursement fee, on or after the 31st day after the date on which

a judgment is entered assessing the fine, court costs, restitution, or other reimbursement

fee.” TEX. CODE CRIM. PROC. ANN. art. 102.030(a).

In the present matter, the judgment was signed August 16, 2023; Appellant’s notice

of appeal was filed on August 31, 2023. The Court of Criminal Appeals has held that a

defendant’s appeal suspends the duty to pay fines, court costs, and restitution; therefore,

assessment of a time payment fee before the appellate mandate issues is premature.

Dulin v. State, 620 S.W.3d 129, 132–33 (Tex. Crim. App. 2021). A time payment fee may

be assessed if an appellant fails to pay all fines, court costs, and restitution owed within

the statutory period. Dulin, 620 S.W.3d at 133. A court of appeals has authority to modify

an incorrect judgment when it has the necessary information to do so. Campos-Dowd v.

State, No. 07-20-00342-CR, 2021 Tex. App. LEXIS 4553, at *7 (Tex. App.—Amarillo June

9, 2021, no pet.) (per curiam) (citing TEX. R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d

26, 27-28 (Tex. Crim. App. 1993)). As mandate has not yet issued, we delete without

3 prejudice to subsequent assessment the time payment fee assessed in the judgment.

See Pruitt v. State, 646 S.W.3d 879, 885–86 (Tex. App.—Amarillo 2022, no pet.) (so

holding).

Conclusion

Counsel’s motion to withdraw is granted. As modified, the trial court’s judgment is

affirmed.3

Lawrence M. Doss Justice

Do not publish.

3 Counsel shall, within five days after this opinion is handed down, send Appellant a copy of the

opinion and judgment, along with notification of Appellant’s right to file a pro se petition for discretionary review. See TEX. R. APP. P. 48.4. This duty is an informational one, not a representational one. It is ministerial in nature, does not involve legal advice, and exists after this Court grants counsel’s motion to withdraw. In re Schulman, 252 S.W.3d at 411 n. 33.