Opinion
06-23-00225-CR
03-21-2024
TIMOTHY RAYLIN JENNINGS, Appellant v. THE STATE OF TEXAS, Appellee
DO NOT PUBLISH
Date Submitted: March 1, 2024
On Appeal from the 71st District Court Harrison County, Texas Trial Court No. 22-0400X
Before Stevens, C.J., van Cleef and Rambin, JJ.
MEMORANDUM OPINION
Scott E. Stevens, Chief Justice
On September 19, 2023, a Harrison County jury convicted Timothy Raylin Jennings of theft of property valued at less than $2,500.00 with two or more previous theft convictions. See Tex. Penal Code Ann. § 31.03(e)(4)(D) (Supp.). After Jennings pled true to the State's punishment-enhancement allegations, a jury assessed a sentence of eight years' imprisonment. Jennings appeals.
Jennings's attorney filed a brief stating that he reviewed the record and found no genuinely arguable issues that could be raised on appeal. The brief sets out the procedural history of the case and summarizes the evidence elicited during the trial court proceedings. Since counsel provided a professional evaluation of the record demonstrating why there are no arguable grounds to be advanced, that evaluation meets the requirements of Anders v. California. 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.
On December 27, 2023, counsel mailed to Jennings copies of the reporter's record and the clerk's record. Counsel also advised Jennings that he had "the right to file a pro se brief in his case and to request an extension of time to prepare and file his pro se response. We notified Jennings that any pro se response was due on or before January 26, 2024. On January 21, 2024, Jennings sent a letter to this Court requesting a status of "new counsel being appointed." Jennings filed neither a pro se response nor a motion requesting an extension of time in which to file such a response.
We have reviewed the entire appellate record and have independently determined that no reversible error exists. See Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005). However, non-reversible error exists in the judgment stating the offense is for theft of property valued at less than $1,500.00 when the value should be less than $2,500.00. See Tex. Penal Code Ann. § 31.03(e)(4)(D). Further, the degree of the offense is also incorrectly stated to be a "2ND DEGREE FELONY" when he was charged and convicted of a state jail felony. See id.; see also State v. Webb, 12 S.W.3d 808, 811 (Tex. Crim. App. 2000) (recognizing that, "[r]egardless of the enhancement, appellee was tried for a state jail felony punishable under § 12.35(a); that his punishment, as opposed to the offense itself, was then subject to enhancement does not change that fact").
"[A]ppellate courts are authorized to reform judgments and affirm as modified in Anders cases involving non-reversible error." Mitchell v. State, 653 S.W.3d 295, 297 (Tex. App.- Texarkana 2022, no pet.) (comprehensively discussing appellate cases that have modified judgments in Anders cases). Because the amount of the theft recited in the trial court's judgment is incorrect, we modify the judgment to reflect the correct amount. Thus, we modify the trial court's judgment by changing the offense of conviction from "THEFT PROP < $1500 2/MORE PREV CONVIC" to "THEFT PROP < $2500 2/MORE PREV CONVIC." Further, because the degree of the offense is incorrect, we modify the trial court's judgment by changing the degree of offense from "2ND DEGREE FELONY" to "STATE JAIL FELONY."
As modified, we affirm the trial court's judgment.
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.