Livingstone Sydwell Zitha v. the State of Texas

NO. 12-22-00197-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

LIVINGSTONE SYDWELL ZITHA, § APPEAL FROM THE 114TH
APPELLANT

V. § JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE § SMITH COUNTY, TEXAS

MEMORANDUM OPINION
PER CURIAM
Livingstone Sydwell Zitha appeals his conviction for theft from a nonprofit organization.
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), and Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969).
We affirm.

BACKGROUND
Appellant was charged by indictment with theft of U.S. currency valued between $2,500
and $30,000 from Carpenter’s Cross Church, a nonprofit organization, a third-degree felony. 1 He
pleaded “not guilty,” and the matter proceeded to a jury trial. At trial, the evidence showed that
Appellant represented to his church members that he had a “calling” to support a South African
church and orphanage in need of financial assistance. The church and its members directed “love
offerings” to Appellant to support the South African church and orphanage. The church’s elders
began questioning the legitimacy of Appellant’s representations, which were later revealed to be
false. The “love offerings” occurred from August 2017 until October 2017. The jury ultimately

1
TEX. PENAL CODE ANN. § 31.03 (e)(4), (f) (West 2019).
found Appellant “guilty.” 2 Following the jury’s “guilty” verdict, Appellant and the State reached
an agreement regarding punishment. The trial court sentenced Appellant to three years
confinement in accordance with the agreement. This appeal followed.

ANALYSIS PURSUANT TO ANDERS V. CALIFORNIA
Appellant’s counsel filed a brief in compliance with Anders v. California and Gainous v.
State. Appellant’s counsel states that he diligently reviewed the appellate record and is of the
opinion that the record reflects no reversible error and that there is no error upon which an appeal
can be predicated. He further relates that he is well acquainted with the facts in this case. In
compliance with Anders, Gainous, and High v. State, 573 S.W.2d 807 (Tex. Crim. App. [Panel
Op.] 1978), Appellant’s brief presents a chronological summation of the procedural history of the
case and further states that Appellant’s counsel is unable to raise any arguable issues for appeal. 3
We likewise reviewed the record for reversible error and found none.

CONCLUSION
As required by Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991), Appellant’s
counsel requested leave to withdraw. 4 See also In re Schulman, 252 S.W.3d 403, 407 (Tex. Crim.
App. 2008) (orig. proceeding). Finding no reversible error, Appellant’s counsel’s request for leave
to withdraw is hereby granted and the appeal is affirmed.
As a result of our disposition of this case, 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
him of his right to file a petition for discretionary review. See TEX. R. APP. P. 48.4; In re
Schulman, 252 S.W.3d 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

2
Appellant was also charged with forgery; however, the jury found Appellant “not guilty” of that offense
and it is not subject to this appeal.
3
In compliance with Kelly v. State, Appellant’s counsel provided Appellant with a copy of the brief, notified
Appellant of his request 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. 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 expired, and
no pro se brief has been filed.
4
Appellant’s counsel did not file a separate motion to withdraw. However, he notified Appellant of his
request to withdraw, and he requested permission to withdraw in his brief.

2
discretionary review on his behalf or he must file a petition for discretionary review pro se. Any
petition for discretionary review must be filed within thirty days from the date of either this opinion
or the date that the last timely motion for rehearing was overruled by this Court. See TEX. R. APP.
P. 68.2. Any petition for discretionary review must be filed with the Texas Court of Criminal
Appeals. See TEX. R. APP. P. 68.3(a). Any petition for discretionary review should comply with
the requirements of Texas Rule of Appellate Procedure 68.4. See In re Schulman, 252 S.W.3d at
408 n.22.
Opinion delivered May 17, 2023.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

(DO NOT PUBLISH)

3
COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

MAY 17, 2023

NO. 12-22-00197-CR

LIVINGSTONE SYDWELL ZITHA,
Appellant
V.
THE STATE OF TEXAS,
Appellee

Appeal from the 114th District Court
of Smith County, Texas (Tr.Ct.No. 114-1258-19)

THIS CAUSE came to be heard on the appellate record and brief filed herein, and
the same being considered, it is the opinion of this court that there was no error in the judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment of the
court below be in all things affirmed, and that the decision be certified to the court below for
observance.
By per curiam opinion.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.