Opinion
No. 06-20-00075-CR
05-27-2021
REBECCA DALE CARTER BRANCH, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 124th District Court Gregg County, Texas
Trial Court No. 47723-B Before Morriss, C.J., Burgess and Stevens, JJ.
MEMORANDUM OPINION
After a bench trial, Rebecca Dale Carter Branch was found guilty of possessing less than one gram of methamphetamine. The trial court sentenced Branch to two years' confinement in state jail and ordered her to pay a $1,500.00 fine but suspended the sentence in favor of placing her on community supervision for five years. The State later alleged several distinct violations of the terms and conditions of Branch's community supervision and moved to revoke it. Branch pled true to the State's allegations, and after an evidentiary hearing, the trial court granted the State's motion. Branch was sentenced to twenty months' confinement in state jail and was ordered to pay a $1,500.00 fine and additional court-appointed attorney fees, among other things. Branch appeals.
The terms and conditions of Branch's community supervision required her to pay a $1,500.00 fine, court costs of $311.00, restitution of $180.00, $1,261.25 in court-appointed attorney fees, and other fees.
Branch's attorney filed a brief stating that he has reviewed the record and has found no genuinely arguable issues that could be raised on appeal. The brief sets out the procedural history of the case and summarizes the evidence elicited during the trial court proceedings. Since counsel has done that and provided a professional evaluation of the record demonstrating why there are no arguable grounds to be advanced, the requirements of Anders v. California have been met. See Anders v. California, 386 U.S. 738, 743-44 (1967); In re Schulman, 252 S.W.3d 403, 406 (Tex. Crim. App. 2008) (orig. proceeding); Stafford v. State, 813 S.W.2d 503, 509-10 (Tex. Crim. App. 1991); High v. State, 573 S.W.2d 807, 812-13 (Tex. Crim. App. [Panel Op.] 1978). Counsel also filed a motion with this Court seeking to withdraw as counsel in this appeal.
Branch was provided with copies of the brief, the appellate record, and the motion to withdraw. Branch was also informed of her rights to review the record and file a pro se response. On April 21, 2021, Branch filed her pro se response, which challenged the validity of her underlying conviction, but not the revocation of her community supervision, and raised other issues, which have been inadequately briefed or unpreserved.
When a defendant is convicted of a crime and placed on community supervision, the Legislature has placed restrictions on her right to appeal certain matters. See TEX. CODE CRIM. PROC. ANN. art. 42A.755(e). A defendant placed on community supervision may appeal her "conviction and punishment . . . at the time the defendant is placed on community supervision." Id. However, when her community supervision is revoked "and [s]he is called on to serve a sentence in a jail or in the Texas Department of Criminal Justice, the defendant may appeal the revocation." Id. Thus, with limited exceptions absent in this case, "an appeal from an order revoking [community supervision] is limited to the propriety of the revocation and does not include a review of the original conviction." Traylor v. State, 561 S.W.2d 492, 494 (Tex. Crim. App. 1978) (citing Corley v. State, 782 S.W.2d 859, 860 n.2 (Tex. Crim. App. 1989); Hoskins v. State, 425 S.W.2d 825, 828 (Tex. Crim. App. 1968)); Stafford v. State, 63 S.W.3d 502, 508 (Tex. App.—Texarkana 2001, pet. ref'd).
We have independently reviewed the entire appellate record and Branch's pro se response and have determined that no reversible error exists. See Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005). However, we have identified nonreversible error in the order to pay attorney fees for court-appointed counsel during revocation, the judgment's recitation of the statute of offense, and the inclusion of a time payment fee in the bill of costs.
The terms and conditions of Branch's community supervision required her to pay $1,261.25 in attorney fees for counsel who represented her in proceedings resulting in the underlying conviction. Branch was found indigent and was appointed counsel to represent her during the revocation. Absent proof of a material change in her circumstances, attorney fees should not have been assessed for services performed during the revocation. See TEX. CODE CRIM. PROC. ANN. arts. 26.04(p), 26.05(g) (Supp.); Walker v. State, 557 S.W.3d 678, 689 (Tex. App.—Texarkana 2018, pet. ref'd). Even so, the trial court assessed an additional $552.50 in attorney fees against her.
Under Article 26.05(g) of the Texas Code of Criminal Procedure, a trial court has the authority to order the reimbursement of court-appointed attorney fees only if "the court determines that a defendant has financial resources that enable him [or her] to offset in part or in whole the costs of the legal services provided, including any expenses and costs." TEX. CODE CRIM. PROC. ANN. art. 26.05(g). "[T]he defendant's financial resources and ability to pay are explicit critical elements in the trial court's determination of the propriety of ordering reimbursement of costs and fees" of legal services provided. Armstrong v. State, 340 S.W.3d 759, 765-66 (Tex. Crim. App. 2011) (quoting Mayer v. State, 309 S.W.3d 552, 556 (Tex. Crim. App. 2010)). Since there is no finding that Branch is able to pay them, the assessment of attorney fees for counsel appointed during the revocation was erroneous. See Cates v. State, 402 S.W.3d 250, 252 (Tex. Crim. App. 2013); see also Mayer, 309 S.W.3d 552; Martin v. State, 405 S.W.3d 944, 946-47 (Tex. App.—Texarkana 2013, no pet.).
In Anders cases, appellate courts "have the authority to reform judgments and affirm as modified in cases where there is nonreversible error." Walker, 557 S.W.3d at 690 (quoting Ferguson v. State, 435 S.W.3d 291, 294 (Tex. App.—Waco 2014, pet. struck) (comprehensively discussing appellate cases that have modified judgments in Anders cases)). As a result, we modify the trial court's judgment and the bill of costs by deleting the additional assessment of attorney fees during revocation and to correctly reflect that the only amount of attorney fees due is the $1,261.25 fee that was assessed when Branch was placed on community supervision.
We also note that the bill of costs includes a time payment fee of $25.00. Recently, the Texas Court of Criminal Appeals has determined that "[t]he pendency of an appeal stops the clock for purposes of the time payment fee" and, as a result, "the assessment of the time payment fees is . . . premature." Dulin v. State, No. PD-0856-19 & PD-0857-19, 2021 WL 1202400, at *4 (Tex. Crim. App. Mar. 31, 2021). Pursuant to Dulin, we strike the time payment fee "in [its] entirety, without prejudice to [it] being assessed later if, more than 30 days after the issuance of the appellate mandate, the defendant has failed to completely pay any fine, court costs, or restitution" owed. Id. We modify the bill of costs by deleting the time-payment fee.
Last, Branch was convicted of possession of less than one gram of methamphetamine, which is a state-jail felony offense under Section 481.115(b) of the Texas Health and Safety Code. While the judgment contains the correct description of the offense and properly states that it is a state-jail felony, it incorrectly lists the statute of offense as Section 481.115(c), which describes a third-degree felony offense. As a result, we further modify the trial court's judgment to reflect that the statute of offense is Section 481.115(b). See TEX. HEALTH & SAFETY CODE ANN. § 481.115(b).
In the Anders context, once we determine that no reversible error exists, we must affirm the trial court's judgment. Bledsoe, 178 S.W.3d at 826-27. We modify the trial court's judgment and the bill of costs (1) by deleting the additional assessment of $552.50 in attorney fees for counsel during revocation and (2) to correctly reflect that only $1,261.25 in attorney fees are due. We further modify the bill of costs by deleting the time-payment fee, and we modify the trial court's judgment to reflect that the statute of offense is Section 481.115(b) of the Texas Health and Safety Code. As modified, the judgment of the trial court is affirmed.
Since we agree that this case presents no reversible error, we also, in accordance with Anders, grant counsel's request to withdraw from further representation of appellant in this case. See Anders, 386 U.S. at 744. No substitute counsel will be appointed. Should appellant desire to seek further review of this case by the Texas Court of Criminal Appeals, appellant 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 (1) must be filed within thirty days from either the date of this opinion or the date on which the last timely motion for rehearing was overruled by this Court, see TEX. R. APP. P. 68.2, (2) must be filed with the clerk of the Texas Court of Criminal Appeals, see TEX. R. APP. P. 68.3, and (3) should comply with the requirements of Rule 68.4 of the Texas Rules of Appellate Procedure, see TEX. R. APP. P. 68.4. --------
Josh R. Morriss, III
Chief Justice Date Submitted: May 12, 2021
Date Decided: May 27, 2021 Do Not Publish