Summary
ordering corrected bill of costs when appellant was indigent and bill of costs listed amount of court-appointed attorney's fees as "TBD"
Summary of this case from Ortiz v. StateOpinion
No. 04-16-00017-CR
05-17-2017
James MOODY, Appellant v. The STATE of Texas, Appellee
MEMORANDUM OPINION
From the County Court at Law No. 15, Bexar County, Texas
Trial Court No. 413867
The Honorable Robert Behrens, Judge Presiding Opinion by: Karen Angelini, Justice Sitting: Karen Angelini, Justice Marialyn Barnard, Justice Luz Elena D. Chapa, Justice AFFIRMED; MOTION TO WITHDRAW GRANTED
A jury convicted James Moody of driving while intoxicated. The trial court sentenced Moody to six months in jail, but suspended the sentence and placed Moody on probation for fourteen months. The trial court also ordered Moody to pay a fine of $850.00 and court costs of $437.00. Moody appealed.
Moody's court-appointed appellate counsel has filed a brief and a motion to withdraw in accordance with Anders v. California, 386 U.S. 738, 744 (1967). Counsel's brief states that he has diligently scrutinized the appellate record and has concluded there is no non-frivolous arguable error. Counsel's brief, which includes citations to the record and to relevant legal authorities, provides a professional evaluation of the record. The brief satisfies the requirements of Anders. See id. at 744; High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. 1978). Additionally, counsel provided Moody with copies of his brief and his motion to withdraw. See Nichols v. State, 954 S.W.2d 83, 85-86 (Tex. App.—San Antonio 1997, no pet.). Finally, the record shows that Moody was advised of his right to file his own brief and was given a copy of the appellate record. See Kelly v. State, 436 S.W.3d 319-20 (Tex. Crim. App. 2014). Moody has filed a pro se brief, in which he complains of the State's purported delay in disclosing certain evidence and the trial court's failure to suppress certain evidence.
When an Anders brief and a subsequent pro se brief are filed, the appellate court must examine the entire record and determine if the appeal is wholly frivolous or if arguable grounds for appeal exist. Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005). If we determine the appeal is wholly frivolous, we must issue an opinion explaining that we have reviewed the record and found no reversible error. Id. If we determine that arguable grounds for appeal exist, we must remand the case to the trial court so that new counsel may be appointed to brief the issues. Id. at 827. We have examined the entire record in this appeal and have found no reversible error. Therefore, we conclude this appeal is wholly frivolous. We affirm the trial court's judgment and grant counsel's motion to withdraw.
Although the trial court's judgment does not order Moody to pay court-appointed attorney's fees, the record contains a certified bill of costs that lists the amount for Moody's court-appointed attorneys as "TBD," or to be determined. Attorney's fees as set forth in a certified bill of costs are effective whether or not incorporated by reference in the written judgment. Armstrong v. State, 340 S.W.3d 759, 767 (Tex. Crim. App. 2011). The trial court found Moody to be indigent and appointed counsel to represent him. Nothing in the record demonstrates a material change in Moody's financial circumstances. Without a showing of a material change in Moody's financial circumstances, it was error for the trial court clerk to assess court-appointed attorney's fees against Moody in the bill of costs. See Rosales-Ayala v. State, No. 04-15-00225-CR, 2016 WL 527405, at *1 (Tex. App.—Feb. 10, 2016, no pet.) (mem. op., not designated for publication). We, therefore, order the trial court clerk to delete the assessment of court-appointed attorney's fees from the bill of costs, and to prepare and file a corrected bill of costs in this case. See id. at *2 (ordering the trial court clerk to delete from the bill of costs the assessment of attorney's fees against an indigent criminal defendant).
No substitute counsel will be appointed. Should Moody wish to seek further review of this case by the Texas Court of Criminal Appeals, he 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 must be filed within thirty days from the later of (1) the date of this opinion; or (2) the date the last timely motion for rehearing is overruled by this court. See TEX. R. APP. P. 68.2. Any petition for discretionary review must be filed in the Texas Court of Criminal Appeals. See TEX. R. APP. P. 68.3. Any petition for discretionary review should comply with the requirements of Rule 68.4 of the Texas Rules of Appellate Procedure. See TEX. R. APP. P. 68.4.
Karen Angelini, Justice DO NOT PUBLISH