Lorenzo Demarkas Patton v. The State of Texas

Suspected drug dealer arrested

Appellant was charged by indictment with bail jumping and failure to appear enhanced by two prior felonies and manufacture or delivery of a controlled substance enhanced by two prior felonies. Pursuant to a plea agreement with the State, he pleaded “guilty” to bail jumping and failure to appear and possession of a controlled substance enhanced by one prior felony. After a hearing, the trial court assessed Appellant’s punishment at imprisonment for ten years in the bail jumping and failure to appear case and twenty years in the possession of a controlled substance case. These appeals followed.







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ANALYSIS PURSUANT TO ANDERS V. CALIFORNIA Appellant’s appellate counsel filed a brief in compliance with Anders v. California and Gainous v. State. Appellant’s counsel relates that she diligently reviewed the record and found no reasonable or plausible nonfrivolous issues for our review. In compliance with High v. State, 573 S.W.2d 807 (Tex. Crim. App. [Panel Op.] 1978), counsel’s brief contains a professional evaluation of the record demonstrating why there are no arguable grounds to be advanced.1 We considered counsel’s brief and conducted our own independent review of the record. Id. at 811. We have found no reversible error.



RESTITUTION In reviewing the record, we observed that the trial court ordered restitution in the possession of a controlled substance case without authority or a factual basis in the record. Neither party has requested that we reform the incorrect judgment, but our authority to reform an incorrect judgment is not dependent on the request of any party. Rhoten v. State, 299 S.W.3d 349, 356 (Tex. App.—Texarkana 2009, no pet.). We have the authority to reform a judgment in an Anders appeal and to affirm that judgment as reformed. See TEX. R. APP. P. 43.2(b); Bray v. State, 179 S.W.3d 725, 726 (Tex. App.—Fort Worth 2005, no pet.). Due process requires a factual basis in the record for a restitution amount. Cartwright v. State, 605 S.W.2d 287, 289 (Tex. Crim. App. [Panel Op.] 1980). A sufficiency claim regarding a restitution order or an amount of restitution need not be preserved for appellate review at the trial level. Mayer v. State, 309 S.W.3d 552, 555 (Tex. Crim. App. 2010). A trial court may order a defendant to reimburse a law enforcement agency for laboratory costs associated with a narcotics seizure, but only as a condition of community supervision. TEX. CODE CRIM. PROC. ANN. art. 42A.301(b)(18) (West 2018); Aguilar v. State, 279 S.W.3d 350, 353 (Tex. App.—Austin 2007, no pet.). Here, the trial court ordered Appellant to “make restitution to the Department of Public Safety for $180 for a lab fee.” Because we find no factual basis in the record for this restitution

1 In compliance with Kelly v. State, Appellant’s counsel provided Appellant with a copy of the brief, notified Appellant of her motion to withdraw as counsel, informed Appellant of his right to file a pro se response, and took concrete measures to facilitate Appellant’s review of the appellate record. 436 S.W.3d 313, 319 (Tex. Crim. App. 2014). Appellant was given time to file his own brief. The time for filing such a brief has expired and no pro se brief has been filed.

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amount, and because the trial court lacked authority to order the restitution, we conclude that the judgment in the possession of a controlled substance case should be modified to reflect a restitution amount of $0.00. See TEX. R. APP. P. 43.2(b); Bray, 179 S.W.3d at 726; Cartwright, 605 S.W.2d at 289; Aguilar, 279 S.W.3d at 350.

As required by Anders and Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991), Appellant’s counsel moved for leave to withdraw. See also In re Schulman, 252 S.W.3d 403, 407 (Tex. Crim. App. 2008) (orig. proceeding). We carried the motion for consideration with the merits. Having done so, we agree with counsel that the appeal is wholly frivolous. Accordingly, we grant Appellant’s counsel’s motion for leave to withdraw. We modify the trial court’s judgment in trial court cause number CR17-0874-392 to reflect a restitution amount of $0.00, and we affirm the judgment as modified. We affirm the trial court’s judgment in trial court cause number CR17-0873-392.