Opinion
No. 04-15-00631-CR
09-14-2016
James Patrick KOTARA, Appellant v. The STATE of Texas, Appellee
MEMORANDUM OPINION
From the 198th Judicial District Court, Kerr County, Texas
Trial Court No. B14642
Honorable M. Rex Emerson, Judge Presiding Opinion by: Karen Angelini, Justice Sitting: Karen Angelini, Justice Marialyn Barnard, Justice Rebeca C. Martinez, Justice AFFIRMED AS MODIFIED; MOTION TO WITHDRAW GRANTED
A jury convicted James Patrick Kotara of the offense of continuous sexual abuse of a young child and set punishment at ninety-nine years in prison. The trial court sentenced Kotara to ninety-nine years in prison and signed a judgment in accordance with the jury's verdicts. At trial, Kotara was represented by a retained attorney. After the trial, Kotara applied for a court-appointed attorney. The trial court granted Kotara's application and appointed a different attorney to represent Kotara on appeal.
On appeal, Kotara's court-appointed appellate counsel filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967). Counsel also filed a motion to withdraw. Counsel's brief states he conducted a thorough review of the appellate record and determined that this appeal is frivolous and without merit. Counsel's brief, which includes citations to the record and to relevant legal authorities, provides a professional evaluation of the record. The brief satisfies the requirements of Anders. See id. at 744; High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. 1978). Additionally, counsel provided Kotara with copies of counsel's brief and his motion to withdraw, and advised Kotara of his right to review the record and file his own brief. See Nichols v. State, 954 S.W.2d 83, 85-86 (Tex. App.—San Antonio 1997, no pet.). Counsel also provided Kotara a copy of the appellate record. See Kelly v. State, 436 S.W.3d 313, 319-20 (Tex. Crim. App. 2014). Subsequently, Kotara filed a brief on his own behalf. In his pro se brief, Kotara argues (1) the evidence was insufficient to support his conviction, (2) the trial court erred in denying his motion to quash and his motion to suppress, and (3) he received ineffective assistance of trial counsel.
When an Anders brief and a subsequent pro se brief are filed, we must examine the entire record and determine if the appeal is wholly frivolous or if arguable grounds for appeal exist. Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005). If we determine the appeal is wholly frivolous, we must issue an opinion explaining that we have reviewed the record and find no reversible error. Id. If we determine that arguable grounds for appeal exist, we must remand the case to the trial court so that new counsel may be appointed to brief the issues. Id. at 827. We carefully examined the record in this appeal and found no reversible error. We conclude this appeal is wholly frivolous.
We have the authority to modify the trial court's judgment in an Anders appeal, and affirm the judgment as modified. Bray v. State, 179 S.W.3d 725, 726 (Tex. App.—Fort Worth 2005, no pet.). Here, the judgment assesses court costs against Kotara in the amount of $934.00. At our request, the trial court clerk filed a supplemental clerk's record containing a bill of costs. The bill of costs states that the court costs in this case are $185.00. Because the record contains no evidence to support court costs in excess of $185.00, we modify the judgment to reflect court costs in the amount of $185.00. We affirm the trial court's judgment as modified, and grant counsel's motion to withdraw.
No substitute counsel will be appointed. Should Kotara wish 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 must be filed within thirty days from the later of (1) the date of this opinion; or (2) the date the last timely motion for rehearing is overruled by this court. See TEX. R. APP. P. 68.2. Any petition for discretionary review must be filed in the Texas Court of Criminal Appeals. See TEX. R. APP. P. 68.3. Any petition for discretionary review should comply with the requirements of Rule 68.4 of the Texas Rules of Appellate Procedure. See TEX. R. APP. P. 68.4.
Karen Angelini, Justice Do not publish