Opinion
02-22-00141-CR
04-13-2023
Jared Domei Maloid, Appellant v. The State of Texas
Do Not Publish Tex.R.App.P. 47.2(b)
On Appeal from the 297th District Court Tarrant County, Texas Trial Court No. 1576238D
Before Bassel, Womack, and Wallach, JJ.
MEMORANDUM OPINION
DABNEY BASSEL JUSTICE
In October 2019, Appellant Jared Domei Maloid, pursuant to a plea bargain, pleaded guilty to the third-degree felony offense of indecency with a child by exposure, see Tex. Penal Code Ann. § 21.11(a)(2), (d), and was placed on six years' deferred adjudication community supervision with sex offender conditions. In December 2020, the State filed its third amended petition to proceed with adjudication of guilt in which it alleged that Maloid had committed numerous violations of the terms of his community supervision. At the adjudication hearing, Maloid pleaded "true" to violating the terms of his community supervision. The trial court adjudicated him guilty and sentenced him to four years' incarceration. This appeal followed.
The State filed its initial petition to adjudicate in April 2020 and filed its first and second amended petitions in October 2020.
At the adjudication hearing, the State waived the eighth alleged violation set forth in its petition. Maloid pleaded "true" to the remaining alleged violations.
On appeal, Maloid's court-appointed appellate counsel has filed a motion to withdraw and a brief reflecting that counsel has determined, after examining the appellate record, that no arguable grounds for appeal exist. See Anders v. California, 386 U.S. 738, 744-45, 87 S.Ct. 1396, 1400 (1967). Counsel's brief and motion meet the requirements of Anders, which requires presenting a professional evaluation of the entire record in the case demonstrating why there are no arguable grounds for relief. Id., 87 S.Ct. at 1400. We have independently examined the record, as is our duty upon the filing of an Anders brief. See Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991); see also Penson v. Ohio, 488 U.S. 75, 82-83, 109 S.Ct. 346, 351 (1988). In compliance with Kelly v. State, counsel provided Maloid with copies of his brief and motion to withdraw, and he informed Maloid of his right to review the record and to file a pro se response. See 436 S.W.3d 313, 319 (Tex. Crim. App. 2014).
Maloid filed a pro se response in which he requested that his sentence be vacated.[3] The State submitted a letter indicating that it would not file a response to the Anders brief or to the motion to withdraw filed by Maloid's counsel.
After carefully reviewing the record, we have determined that the $25 "time payment fee" assessed after the adjudication order and reflected in a subsequent bill of costs and the adjudication judgment is premature and should be deleted. See Act of June 2, 2003, 78th Leg., R.S., ch. 209, § 62, 2003 Tex. Gen. Laws 979, 996-97, redesignated as Tex. Code Crim. Proc. Ann. art. 102.030. The Court of Criminal Appeals recently held that "the time payment fee was designed to be triggered by the finality of the judgment" and that "[t]he pendency of an appeal stops the clock for purposes of the time payment fee." Dulin v. State, 620 S.W.3d 129, 133 (Tex. Crim. App. 2021). Because Maloid perfected his appeal prior to the thirty-first day following the entry of the judgment, the assessment of the time payment fee was premature. See Garza v. State, No. 02-20-00155-CR, 2022 WL 488933, at *3-4 (Tex. App.-Fort Worth, Feb. 17, 2022, no pet.) (mem. op., not designated for publication); see also Guevara v. State, No. 02-21-00069-CR, 2022 WL 1042919, at *4 (Tex. App.- Fort Worth Apr. 7, 2022, no pet.) (mem. op., not designated for publication). Thus, we strike the time payment fee in its entirety, without prejudice to its being assessed later if, more than 30 days after the issuance of the appellate mandate, Maloid has failed to completely pay any court costs that he owes. See Dulin, 620 S.W.3d at 133.
Due to Maloid's November 9, 2018, offense date, we apply the former version of the time-payment-fee statute. The redesignated section was effective on January 1, 2020, and applies only to convictions with offense dates on or after that date. See Act of May 23, 2019, 86th Leg., R.S., ch. 1352, S.B. 346, § 2.54, 2019 Tex. Sess. Law Serv. 3981, 4010.
To the extent that the time payment fee was levied because Maloid failed to timely pay certain fines, fees, or other court costs assessed in the order deferring adjudication, this was improper because such an order is not a "judgment." See Turner v. State, No. 05-19-01493-CR, 2021 WL 3083501, at *2 (Tex. App.-Dallas July 21, 2021, no pet.) (mem. op. on remand, not designated for publication).
Except for the modification to the judgment discussed above, we agree with counsel that this appeal is wholly frivolous and without merit. Our independent review of the record reveals nothing further that might arguably support the appeal. See Bledsoe v. State, 178 S.W.3d 824, 827-28 (Tex. Crim. App. 2005); see also Meza v. State, 206 S.W.3d 684, 685 n.6 (Tex. Crim. App. 2006). Accordingly, we grant counsel's motion to withdraw, modify the trial court's judgment to remove the $25 time payment fee from the bill of costs (without prejudice to its being assessed later), and affirm the judgment as modified. See Tex.R.App.P. 43.2(b); Bray v. State, 179 S.W.3d 725, 729 (Tex. App.-Fort Worth 2005, no pet.).