Opinion
NO. 09-11-00622-CR
09-26-2012
MARK S. MOORE A/K/A MARK STEVEN MOORE, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 252nd District Court
Jefferson County, Texas
Trial Cause No. 11-10831
MEMORANDUM OPINION
In carrying out a plea-bargain agreement, Mark S. Moore a/k/a Mark Steven Moore pled guilty to burglary of a habitation, which was then enhanced to a first-degree felony because of a prior felony conviction. See Tex. Penal Code Ann. § 12.42(b) (West Supp. 2012), § 30.02(a)(3), (c)(2) (West 2011). Under the terms of Moore's plea-bargain agreement, the trial court deferred further proceedings, and instead, placed Moore on community supervision for seven years.
We cite to the current version of section 12.42 because the subsequent 2011 amendment does not affect the outcome of this appeal.
Subsequently, the State sought to revoke the trial court's community supervision order. In its motion to revoke, the State alleges that Moore violated the terms of his community supervision order. Moore pled "true" to violating three of the terms of his community supervision order. The trial court accepted Moore's pleas, found Moore had violated three of the conditions of his community supervision order, found Moore guilty of burglarizing a habitation, and noted that at a prior hearing it had found the enhancement allegation to be true. At the conclusion of the sentencing hearing, the trial court sentenced Moore to forty-five years in prison.
On appeal, Moore's counsel filed a brief that presents counsel's professional evaluation of the record and concludes that Moore's appeal is frivolous. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978). On May 10, 2012, we granted an extension of time for the appellant to file a pro se brief. Moore filed a response, but his response fails to identify any specific errors; instead, he requests the appointment of new counsel to represent him in this appeal.
We have reviewed the appellate record, and we agree with counsel's conclusion that no arguable issues support an appeal. Therefore, we find it unnecessary to order appointment of new counsel to re-brief the appeal. Cf. Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991).
However, although we affirm the trial court's judgment, we also conclude that with respect to the trial court's award of attorney's fees, the trial court's judgment should be modified. The record shows that the trial court awarded attorney's fees of $650 despite its finding that Moore is indigent. The evidence in the record does not support a finding that Moore's ability to pay attorney's fees changed after the trial court first determined Moore to be indigent. See Tex. Code Crim. Proc. Ann. arts. 26.04(p), 26.05(g) (West Supp. 2012); Roberts v. State, 327 S.W.3d 880, 883-84 (Tex. App.—Beaumont 2010, no pet.). Therefore, we delete the award of $650 in attorney's fees by subtracting $650 from the Administrative Fees, thereby, changing the Administrative Fees from $1,500 to $850.
In conclusion, with the exception of the award of attorney's fees, the trial court's judgment, as reformed, is affirmed.
Appellant may challenge our decision in this case by filing a petition for discretionary review. See Tex. R. App. P. 68.
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AFFIRMED AS REFORMED.
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HOLLIS HORTON
Justice
Do Not Publish Before Gaultney, Kreger, and Horton, JJ.