Opinion
No. 06-17-00012-CR
08-30-2017
MICHAEL DON MITCHELL, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 77th District Court Limestone County, Texas
Trial Court No. 12989-A Before Morriss, C.J., Moseley and Burgess, JJ.
Memorandum Opinion by Justice Moseley MEMORANDUM OPINION
Michael Don Mitchell was convicted by a Limestone County jury of burglary of a habitation, and the trial court assessed punishment of thirty years' incarceration.
Originally appealed to the Tenth Court of Appeals, this case was transferred to this Court by the Texas Supreme Court pursuant to its docket equalization efforts. See TEX. GOV'T CODE ANN. § 73.001 (West 2013). We are unaware of any conflict between precedent of the Tenth Court of Appeals and that of this Court on any relevant issue. See TEX. R. APP. P. 41.3.
See TEX. PENAL CODE ANN. § 30.02(a)(1) (West 2011).
Mitchell's appellate attorney filed a brief setting out the procedural history of the case, summarizing the evidence elicited during the course of the trial court proceedings, and concluding that the appellate record presents no arguable grounds to be raised on appeal. Meeting the requirements of Anders v. California, counsel has provided a professional evaluation of the record demonstrating why there are no plausible appellate issues to be advanced. See Anders v. California, 386 U.S. 738, 743-44 (1967); 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.
Counsel provided Mitchell with copies of the brief, the appellate record, and the motion to withdraw. Counsel also informed Mitchell of his right to review the appellate record and file a pro se response. Mitchell has filed a response in which he questions whether he was subjected to double jeopardy and "neglect." After reviewing the record, we find that these points are without merit.
In Anders cases, we "have the authority to reform judgments and affirm as modified in cases where there is non reversible error." Ferguson v. State, 435 S.W.3d 291, 293-94 (Tex. App.—Waco 2014, pet. struck) (discussing appellate cases that have modified judgments in Anders cases).
In this case, the trial court's judgment recites that the statute of the offense is "30.02(c)(2) Penal Code" and that the degree of the offense is "1ST DEGREE FELONY." However, Mitchell was convicted of burglary of a habitation under Section 30.02(a)(2) of the Penal Code, which is a second degree felony. See TEX. PENAL CODE ANN. § 30.02(a)(2), (c)(2) (West 2011). Thus, we modify the judgment to recite the correct statute of the offense as Section 30.02(a)(2) of the Penal Code and to recite the correct degree of offense as a second degree felony.
We have independently reviewed the entire appellate record, as well as Mitchell's pro se response, and find that no reversible error exists. See Halbert v. Michigan, 545 U.S. 605, 623 (2005); Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005).
We modify the judgment to recite the correct statute of the offense as Section 30.02(a)(2) of the Penal Code and to recite the correct degree of offense as a second degree felony and affirm the judgment of the trial court, as modified.
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, he 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.
Bailey C. Moseley
Justice Date Submitted: August 24, 2017
Date Decided: August 30, 2017 Do Not Publish