## NO. 12

- 22

- 00261 -CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS

JOHN CALVIN WHITMOR E

, APPELLANT

V.

THE STATE OF TEXAS , APPELLEE §

§

§ APPEAL FROM THE 159TH

JUDICAL DISTRICT COURT

ANGELINA COUNTY, TEXAS

MEMORANDUM OPINION PER CURIAM
John Calvin Whitmore appeals his convictions for assault and evading arrest or detention
in a vehicl e. Appellant’s counsel filed a brief in compliance with Anders v. California , 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), a nd Gainous v. State , 436 S .W .2d 137 (Tex. Crim. App. 1969). We modify and affirm as modified

.

B ACKGROUND Appellant was charged by in dictment with aggravated assault with a deadly weapon and evading arres t or detention in a vehicle , enhanced by two prior felony convictions . H e pleaded
“not guilty ,” and the matter proceeded to a jury trial. At trial, the undisputed evidence shows that the victim, Carlos Hayter, was sitting with Appellant’s fiancé e or ex
- fiancée , Meshia Coutee, on her front porch when Appe llant arrived. According to Hayter, Appellant attacked him with a knife. According to Coutee ’s testimony at
trial , Appel lant and Hayter fought, but neither had a weapon, and she did not know who started the fight. Later that night, t he police attempted to initiate a traffic stop on Appellant. 1 He

1 Lufkin Police Officer Cade Westbrook testified that after the assault was reported , he was patrolling near Coutee’s house at her request

. While he was patrolling, Coutee report ed that Appellant drove past her house.2 initially stopped but proceeded to leave after the officer exited his vehicle

. After repeating this
routine once again , Appellant led the police on a high

- speed chase that ended at his apartment complex

. Ultim ately, the jury found Appellant “guilty” of the lesser included offense of assault 2
and evading arrest or detention in a vehicle

. 3 Appellant pleaded “not true” to the enhancement allegations

. The jury found the enhancement allegations “true.” In the assault case, the jury
assessed his punishment at confinement for a term of one year and a $4,000.00 fine. In the evading case, the jury assessed Appellant’s punishment at imprisonment for a term o f ninety

nine years and a $10,000.00 fine. This appeal follo wed.

A NALYSIS P URSUANT TO A NDERS V
. C ALIFORNIA Appellant’s counsel filed a brief in compliance with Anders v. Californi a and Gainous v.
State

. Appellant’s counsel relates tha t he carefully examined the record and found no arguable grounds to support an appeal

. In compliance with High v. State , 573 S.W.2d 807, 81 2 (Tex. Crim. App. [ Panel Op.] 1978), Appellant’s brief cont ains a professional evaluation of the recor d demonstrating why ther e are no arguable grounds to be advanced. 4
W e conducted a n independent review of the record in this case and found no reversible

error

. See id. We conclude that the appeal is wholly frivolous. See id.

I MPROPER F INE
T he $10,000.00 fine imposed in the evading case is not authorized by the statute under which Appellant ’s punish ment was assessed

. See Dolph v. State , 440 S.W.3d 898, 908 (Tex.

Westbrook found him about a block away

. Cout ee, who was engaged t o Appellant at the time of trial, could not remember whether she asked for extra patrols that night.

2 A Class A misdemeanor punishable, with the al leged enhancements, by 1) a fine not to exceed $4,000 .00, 2) confinement for a term o f not more than one year or less than ninety days , or 3) both such fine and confinement

. See T EX

. P ENAL C ODE A NN

. §§ 22.01 (a) (1) ( Wes t Supp. 2022 ) ; 12.43(a) (West 2019 ).

3 A third

- degree felony punishable, with the alleged enhancements, by imprisonment fo r a term of life, or not more than ninety

- nine years or less than twenty

- five years. See id

. §§ 38.04 (a ), ( b)(2)(A) (West 201 6 ), 12.42( d) (West 2019 ).

4 In compliance wi th Kelly v. State , Appellant’s counsel provided Appellant with a copy of the brief, notified Appellant of the motion to withdraw as counsel, informed Appellant of h is right to file a pro se response, and took concrete measures to facilitat e Appellant’s rev iew of the appellate record. See Kelly v. State , 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 was filed.3 App.— Texarkana 2013, pet. ref’d); T EX

. P ENAL C OD E A NN

. § 12.42(d) ( containing no provision authorizing imposition of fine); see also Ex parte Youngblood , 698 S.W.2d 671, 672 (Tex. Crim. App. 1985) (judgment reformed to delete fine unauthorized under Section 12.42(c)). Therefore,
we reform the verdict i n Count II to delete the improper fine. See Dolph , 440 S.W.3d at 908; Ex parte Youngblood , 698 S.W.2d at 672.

C ONCLUSION As required by Anders and Stafford v. St a te , 813 S.W.2d 503, 511 ( T ex

. Crim. App. 1991), Appellant’s counsel has 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
considerat ion with the merits. Having done so, we agree with Appellant’s counsel that the appeal is wholly frivolous. Accordingly , we grant counsel’s motion for leave to withdra w. We affirm Count I of the trial court’s judgment. We modify Count II of the trial c ourt’s judgment to
delete the fine and affirm it as modified

. Appellant’s counsel has a duty to, within five days of the date of this opinion, send a copy of the opinion and judgment to Appellant and advise h im of h is right to file a petition for
discreti onary review. See T EX

. R. A PP

. P. 48.4; In re Schulman , 252 S.W.3 d at 411 n.35. Should Appellant wish to seek review of this case by the Texas Court of Criminal Appeals, he must either retain an attorney to file a petition for discretionary review on h is behalf or he must file a pro se petition for discretionary review. Any petition for discretionary review must be filed within thirty days f ro m either the date of this opinion or the da t e that the last timely motion for rehearing was overruled by this cou rt. See T EX

. R. A PP

. P. 68.2( a) . A ny petition for discretionary review must be filed with the Texas Court of Criminal A ppeals. See T EX

. R. A PP

. P. 68.3( a). Any petition for discretionary review should comply with the requirements of Rule 68.4 of the Texas Rules of Appellate Procedure. See In re Schulman , 252 S.W.3d at 408 n.22. Opinion delivered July 31, 2023. Panel co nsisted of Worthen, C.J., Hoyle, J., and Neeley, J.4 ( DO NOT PUBLISH )

## COURT OF APPEALS

T WELFTH COURT OF APPEALS DISTRI CT OF TEXAS

JUDGMENT

JULY 31, 2023

NO. 12-22-00261- CR

JOHN CALVIN WHITMORE , Appellant V. THE STATE OF TEXAS , Appellee

Appeal from the 159th District Court
of Angelina County, Texas (Tr.Ct.No. 2022-0425)

THIS CAUSE came on to be heard on the appellate record and the brief filed herein, and the same being inspected, it is the opinion of the Court that the judgment of the
trial court below should be modified and, as modified, affirmed

. It is therefore ORDERED, ADJUD GED and DECREED that the judgment
of the court below be modified to reflect that the fine in Count II be delete d ; and as modified , the trial court’s judgment is affirmed ; and that this decision be certified to the trial court below
for observance. By per c uriam opinion. Panel consisted of Worthen, C.J., Hoyle, J. and Neeley , J.