Opinion
06-23-00186-CR
03-15-2024
TYRI RASHAAD DUNN, Appellant v. THE STATE OF TEXAS, Appellee
Do Not Publish
Date Submitted: February 28, 2024
On Appeal from the 188th District Court Gregg County, Texas Trial Court No. 51368-A
Before Stevens, C.J., van Cleef and Rambin, JJ.
MEMORANDUM OPINION
Charles van Cleef Justice
In an open plea, Tyri Rashaad Dunn pled guilty to aggravated assault with a deadly weapon, a firearm, and after an evidentiary hearing, the trial court found Dunn guilty and sentenced him to thirteen years' imprisonment. Dunn appeals.
See TEX. PENAL CODE ANN. § 22.02(a)(2) (Supp.).
Dunn's appellate counsel filed a brief that outlined the procedural history of the case, provided a detailed summary of the evidence elicited during the trial court proceedings, and stated that counsel found no meritorious issues to raise on appeal. Counsel provided a professional evaluation of the record and demonstrated why there are no arguable grounds to be advanced, as required by law. 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).
Dunn's counsel filed a motion with this Court seeking to withdraw as counsel in this appeal and provided Dunn with copies of the brief and the motion to withdraw. His counsel also informed Dunn of his rights to review the record and to file a pro se response and provided him with an unsigned pro se motion for access to the appellate record. By letter dated January 8, 2024, we notified Dunn that his motion for access to the record was due on or before January 23, 2024. We also notified Dunn by letter dated February 7, 2024, that the case would be submitted on briefs on February 28, 2024. Dunn did not filed a motion for access to the record or a pro se response.
We have reviewed the entire appellate record and have independently determined that no reversible error exists. See Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005). "However, appellate courts are authorized to reform judgments and affirm as modified in Anders cases involving non-reversible error." Mitchell v. State, 653 S.W.3d 295, 297 (Tex. App.- Texarkana 2022, no pet.) (comprehensively discussing appellate cases that have modified judgments in Anders cases).
The record shows that the certified bill of costs assessed Dunn a time payment fee of $15.00. In addition, the bill of costs contains an entry that states, "An additional time payment fee of $25.00 will be assessed if any part of a fine, court costs, or restitution is paid on or after the 31st day after the date the judgment assessing the fine, court costs, or restitution is entered. See Texas Local Government Code, Section 133.103." In addition, the court costs assessed in the judgment included the time payment fee of $15.00.
The Texas Court of Criminal Appeals has recently concluded that a time payment fee like the one imposed here "must indeed be struck for being prematurely assessed because a defendant's appeal suspends the duty to pay court costs and therefore suspends the running of the clock for the purposes of the time payment fee." Dulin v. State, 620 S.W.3d 129, 129 (Tex. Crim. App. 2021). "As a consequence, even now, assessment of the time payment fee in this case would be premature because appellate proceedings are still pending." Id. 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. at 133. We modify the judgment and the bill of costs by deleting the time payment fee. We also modify the bill of costs by deleting the following: "An additional time payment fee of $25.00 will be assessed if any part of a fine, court costs, or restitution is paid on or after the 31st day after the date the judgment assessing the fine, court costs, or restitution is entered. See Texas Local Government Code, Section 133.103." Also, the judgment contains an entry that states, "APPEAL WAIVED. NO PERMISSION TO APPEAL GRANTED." However, the trial court correctly certified to this Court that "this criminal case . . . is not a plea agreement case, and the defendant has the right of appeal." We modify the trial court's judgment by striking the following: "APPEAL WAIVED. NO PERMISSION TO APPEAL GRANTED."
As modified, we affirm the judgment of the trial court.
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.