Shayansa Dalakia Mitchell v. State

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-19-00068-CR

SHAYANSA DALAKIA MITCHELL, Appellant v.

THE STATE OF TEXAS, Appellee

From the 77th District Court Limestone County, Texas Trial Court No. 14310-A

MEMORANDUM OPINION

Shayansa Dalakia Mitchell was convicted of driving while intoxicated, a third or

more offense, enhanced and as a habitual offender. See TEX. PENAL CODE ANN. § 49.04(b).

She was sentenced to 11 years in prison.

Mitchell’s appellate attorney filed a motion to withdraw and an Anders brief in

support of the motion to withdraw, asserting that the appeal presents no issues of

arguable merit. See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967).

Counsel advised Mitchell that counsel had filed the motion and brief pursuant to Anders, advised Mitchell of her right to review the record, and advised Mitchell of her right to

submit a response on her own behalf. Mitchell submitted a response which consisted of

a letter, a DVD of the traffic stop, and various other documents including certificates of

various programs that she had completed. The letter asked the Court to carefully review

the enclosures and her efforts to rehabilitate herself.1 This we have done to the extent

that we can within the confines of the applicable law and our standard of review.

However, because we are limited to the record properly before us, and these documents

are not part of that record, our ability to use or rely on these documents is very limited.

Nevertheless, we have evaluated them in the context of Mitchell’s response to her

appointed counsel’s motion to withdraw and brief in support.

Counsel asserts in the Anders brief that counsel has made a thorough review of the

entire record, including Mitchell’s judicial confession, the plea admonishments, the

sufficiency of the indictment, the assistance of counsel, the sufficiency of the evidence,

the judgment, the sentencing procedure, and the enhancements. After the review,

counsel concludes there is no non-frivolous issue to raise in the appeal. Counsel's brief

evidences a professional evaluation of the record for error, and we conclude that counsel

performed the duties required of appointed counsel. See Anders, 386 U.S. at 744; High v.

1 Because several of the submitted documents were original certificates, we have scanned the documents for entry in our case management system and returned the originals to her.

Mitchell v. State Page 2 State, 573 S.W.2d 807, 812 (Tex. Crim. App. 1978); see also In re Schulman, 252 S.W.3d 403,

407 (Tex. Crim. App. 2008).

Upon the filing of an Anders brief, as the reviewing appellate court, it is our duty

to independently examine the record to decide whether counsel is correct in determining

that an appeal is frivolous. See Anders, 386 U.S. at 744; Stafford v. State, 813 S.W.2d 503,

511 (Tex. Crim. App. 1991). Arguments are frivolous when they "cannot conceivably

persuade the court." McCoy v. Court of Appeals, 486 U.S. 429, 436, 108 S. Ct. 1895, 100 L.

Ed. 2d 440 (1988).

Having carefully reviewed the entire record, the Anders brief, and Mitchell’s

response, we have determined that the appeal is frivolous. See Bledsoe v. State, 178 S.W.3d

824, 826-27 (Tex. Crim. App. 2005). Accordingly, we affirm the trial court’s Judgment of

Conviction by Court signed on January 22, 2019.

Should Mitchell wish to seek further review of this case by the Texas Court of

Criminal Appeals, she must either retain an attorney to file a petition for discretionary

review or must file a pro se petition for discretionary review. No substitute counsel will

be appointed. Any petition for discretionary review must be filed within thirty days from

the date of this opinion or the last timely motion for rehearing or timely motion for en

banc reconsideration has been overruled by this Court. See TEX. R. APP. P. 68.2. Any

petition and all copies of the petition for discretionary review must be filed with the Clerk

of the Court of Criminal Appeals. See TEX. R. APP. P. 68.3. (Tex. Crim. App. 1997, amended

Mitchell v. State Page 3 eff. Sept. 1, 2011). Any petition for discretionary review should comply with the

requirements of Rule 68.4 of the Texas Rules of Appellate Procedure. See TEX. R. APP. P.

68.4. See also In re Schulman, 252 S.W.3d at 409 n.22.

Counsel's motion to withdraw from representation of Mitchell is granted, and

counsel is discharged from representing Mitchell. Notwithstanding counsel’s discharge,

counsel must send Mitchell a copy of our decision, notify her of her right to file a pro se

petition for discretionary review, and send this Court a letter certifying counsel's

compliance with Texas Rule of Appellate Procedure 48.4. TEX. R. APP. P. 48.4; see also In

re Schulman, 252 S.W.3d at 409 n.22.

TOM GRAY Chief Justice

Before Chief Justice Gray, Justice Davis, and Justice Neill Affirmed Opinion delivered and filed July 3, 2019 Do not publish [CR25]

Mitchell v. State Page 4