Opinion
03-21-00534-CR
08-31-2023
Matthew Glenn Hopkins, Appellant v. The State of Texas, Appellee
Do Not Publish
FROM THE 424TH DISTRICT COURT OF BURNET COUNTY NO. 49873, THE HONORABLE EVAN C. STUBBS, JUDGE PRESIDING
Before Chief Justice Byrne, Justices Triana and Smith
MEMORANDUM OPINION
Edward Smith, Justice
Appellant Matthew Glenn Hopkins was convicted by a jury of evading arrest or detention with a vehicle and sentenced to twenty years' confinement. See Tex. Penal Code. §§ 12.42(a), 38.04(a), (b)(2)(A).
Appellant's court-appointed attorney has filed a motion to withdraw supported by a brief concluding that the appeal is frivolous and without merit. The brief meets the requirements of Anders v. California by presenting a professional evaluation of the record demonstrating why there are no arguable grounds to be advanced. See 386 U.S. 738, 744 (1967); Garner v. State, 300 S.W.3d 763, 766 (Tex. Crim. App. 2009); see also Penson v. Ohio, 488 U.S. 75, 81-82 (1988). Appellant's counsel has certified to this Court that he sent copies of the motion and brief to appellant, advised appellant of his right to examine the appellate record and file a pro se response, and provided a motion to assist appellant in obtaining the record. See Kelly v. State, 436 S.W.3d 313, 319-20 (Tex. Crim. App. 2014); see also Anders, 386 U.S. at 744. Appellant filed a pro se response on December 20, 2022 and a supplemental pro se response on December 28, 2022.
We have conducted an independent review of the record-including the record of the trial and sentencing proceedings below, appellate counsel's brief, and appellant's pro se responses-and find no reversible error. See Anders, 386 U.S. at 744; Garner, 300 S.W.3d at 766; Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005). We agree with counsel that the record presents no arguably meritorious grounds for review, and the appeal is frivolous. However, we also agree with counsel that the trial court's written judgment of conviction contains non-reversible error in its assessment of attorney's fees.
In the judgment of conviction, signed October 6, 2021, the court included the following special finding and order: "THE DEFENDANT ACKNOWLEDGED HIS/HER ABILITY TO PAY COURT APPOINTED ATTORNEY FEES IN PERIODIC PAYMENTS AND IS HEREBY ORDERED TO PAY COURT APPOINTED ATTORNEY FEES IN THE AMOUNT OF $2,850.00."
A trial court may order a defendant to pay court-appointed attorney's fees "[i]f the judge determines that a defendant has financial resources that enable the defendant to offset in part or in whole the costs of the legal services provided to the defendant." Tex. Code Crim. Proc. art. 26.05(g). A trial court's determination under article 26.05(g) "requires a present determination of financial resources and does not allow speculation about possible future resources." Cates v. State, 402 S.W.3d 250, 252 (Tex. Crim. App. 2013). Further, "[a] defendant who is determined by the court to be indigent is presumed to remain indigent for the remainder of the proceedings in the case unless a material change in the defendant's financial circumstances occurs." Tex. Code Crim. Proc. art. 26.04(p).
In July 2019, appellant requested a court-appointed attorney and averred that he had discretionary monthly income of $540 through his salary but was in jail. He also attested that he "ha[s] no means to employ counsel of [his] own choosing." On June 24, 2021, the trial court appointed an attorney to represent appellant at trial and found that appellant was not financially able to employ an attorney. Following trial, appellant's counsel moved to withdraw and requested that the trial court appoint an attorney to represent appellant on appeal because "he is indigent and cannot afford to employ counsel." The court appointed an appellate attorney for appellant on October 19, 2021-after its order that he pay attorney's fees-and again found that he was not financially able to employ an attorney.
The evidence in the record is insufficient to show that appellant has the ability to pay the assessed attorney's fees, and there is nothing to indicate a material change in his financial circumstances. See Tex. Code Crim. Proc. art. 26.04(g), (p). This Court has authority to modify incorrect judgments when the necessary information is available to do so. See Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993). Because the evidence is insufficient to support the assessed attorney's fees of $2,850.00 in the judgment, we modify the judgment to delete the attorney's fees. See Cates, 402 S.W.3d at 252 (explaining that proper remedy for improperly imposed court-appointed attorney's fees is to reform judgment by deleting court-appointed attorney's fees from order assessing court costs); Blackard v. State, No. 03-15-00819-CR, 2016 WL 4506160, at *1-2 (Tex. App.-Austin Aug. 25, 2016, no pet.) (mem. op., not designated for publication) (modifying judgment to delete order to pay court-appointed attorney's fees because evidence was insufficient to support trial court's finding that defendant had ability to pay fees despite finding stated in judgment that defendant acknowledged ability to pay court-appointed attorney's fees in periodic payments).
Counsel's motion to withdraw is granted. The trial court's judgment of conviction, modified as described above, is affirmed.
Modified and, as Modified, Affirmed