Opinion
08-22-00015-CR
01-17-2023
MICHAEL GUTIERREZ, Appellant, v. THE STATE OF TEXAS, Appellee.
Do Not Publish
Appeal from the 54th Judicial District Court of McLennan County, Texas (TC# 2010-1037-C2)
Before Rodriguez, C.J., Palafox, and Soto, JJ.
MEMORANDUM OPINION
YVONNE T. RODRIGUEZ, Chief Justice
A jury convicted Appellant, Michael Gutierrez, of aggravated robbery with a deadly weapon and assessed his punishment, enhanced by a prior conviction, at sixty years' punishment and a $10,000 fine. See Tex. Penal Code Ann. § 29.03. This appeal ensued. We affirm the trial courts judgment as modified.
This case was transferred from our sister court in Waco (10th District), and we decide it in accordance with the precedent of that court to the extent required by Tex.R.App.P. 41.3.
Court-appointed appellate counsel has filed a motion to withdraw and what has been termed by our sister court an Allison brief-a traditional Anders brief that also alleges non-reversible error-in support of the motion. See Cummins v. State, 646 S.W.3d 605, 614 (Tex. App.-Waco 2022, pet. ref'd) (referring to Allison v. State, 609 S.W.3d 624 (Tex. App.- Waco 2020, order)) (per curiam). Counsel asserts he has diligently reviewed the record and, except for non-reversible error (which we discuss below), the appeal is wholly frivolous and without merit. Counsel has certified to this Court he has provided Appellant with a copy of the Allison brief and withdrawal motion and advised him of his rights to examine the appellate record and to file a pro se brief. To date, Appellant has not filed a pro se brief.
Anders v. California, 386 U.S. 738, 741-44 (1967).
Counsel's brief displays a professional evaluation of the record for error and compliance with the other duties of appointed counsel when filing an Anders brief. See Anders v. California, 386 U.S. 738, 741-744 (1967). We have carefully reviewed the record and counsel's Allison brief and agree there are no arguable grounds for reversal of Appellant's conviction and sentence. However, in addition to "conduct[ing] [this] independent review of the record for reversible error involving the defendant's conviction and sentence" (as is the case in a traditional Anders brief), we must also "treat the briefed non[-]reversible error as a merits issue." Cummins, 646 S.W.3d at 612. Here, counsel identifies what has been categorized by the Cummins Court as a Category two non-reversible error not subject to procedural default-in this case, error regarding the assessment of fees for court-appointed counsel and a court-appointed investigator. See Spencer v. State, No.10- 22-00153-CR, 2022 WL 17834267, at *1 (Tex. App.-Waco Dec. 21, 2022, no pet.) (mem. op., not designated for publication) (citing Cummins, 646 S.W.3d at 616).
Unlike a true Anders brief, where the State's right to respond is triggered only upon the filing of a pro se response by an appellant, when counsel files an Allison brief, the State has a right to respond whether a pro se response is filed or not. Id. at 610, 615 (citing Wilson v. State, 955 S.W.2d 693, 697 (Tex. App.-Waco 1997, no pet.). Here, the State forewent the filing of a response.
Examining this claim on its merits, as we must, we agree the trial court erred in assessing against Appellant $1,197 in attorney's fees and $660 in investigator's fees. The record shows the trial court found Appellant to be indigent well in advance of trial and appointed him both trial counsel and an investigator. The trial court's judgment states "SEE BELOW" in the space allotted for court costs. The district clerk's office subsequently issued a certified bill of cost, which includes the complained-of fees. While a court is authorized to order reimbursement of the costs of legal services provided to a defendant, including investigative costs, it may only do so if it "determines that [the] defendant has financial resources that enable the defendant to offset" those costs. See Tex. Code Crim. Proc. art.§ 26.05 (d), (g); 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) ("[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.")). And once the trial court found Appellant to be indigent, he was presumed to remain indigent for the remainder of the proceedings unless it was demonstrated his financial resources underwent a material change. See Tex. Code Crim. Proc. art. § 26.04(p). The trial court did not re-examine its previous finding of indigency before entering its judgment. In fact, following the entry of the judgment, the trial court appointed counsel to represent Appellant on appeal, noting that "the defendant does not have sufficient funds to employ an attorney." Thus, the bill of costs (incorporated by reference in the judgment) should not have included the combined $1,857 in court-appointed counsel and investigator fees. Id.
Accordingly, we exercise our authority to reform the judgment to omit the assessment of $1,197 in court-appointed attorney's fees and $660 in court-appointed investigator fees and affirm the judgment as modified. See Cummins, 646 S.W.3d at 616-17. Except for this modification, we agree with appellate counsel that this appeal is wholly frivolous and without merit. We affirm the trial court's judgment as modified and grant counsel's motion to withdraw. See id. at 619 (appropriate action on counsel's motion to withdraw supported by Allison brief is to grant it, rather than dismiss it).
Because the clerk's bill of cost is incorporated in the judgment by reference, the bill of costs should be modified to reflect the cost due in the judgment as modified-that is, to exclude the erroneously assessed court-appointed investigator and attorney's fees. See Lee v. State, No. 10-18-00334-CR, 2022 WL 17978917, at *3 n. 5 (Tex. App.- Waco Dec. 28, 2022, no pet.) (mem. op., not designated for publication).