Opinion
02-23-00235-CR
06-06-2024
James Tyler Pool, Appellant v. The State of Texas
Do Not Publish Tex.R.App.P. 47.2(b)
On Appeal from the 355th District Court Hood County, Texas Trial Court No. CR14619
Before Kerr, Birdwell, and Bassel, JJ.
MEMORANDUM OPINION
Wade Birdwell Justice
A jury convicted James Tyler Pool of assault of a family member by impeding normal breath or blood circulation, and the trial judge assessed his punishment at sixteen years' confinement. See Tex. Penal Code Ann. § 22.01(b)(2)(B). Pool did not object to the assessed punishment, and the trial court sentenced him accordingly.
Pool pleaded true to a prior felony conviction, which increased the punishment range of the underlying assault conviction to that of a second-degree felony. See Tex. Penal Code Ann. §§ 12.33-.34, 12.42(a), 22.01(b)(2)(B). The offense for which he was convicted was Count Two of a four-count indictment; Pool was not convicted of the other three alleged offenses.
Pool's court-appointed appellate counsel has filed a motion to withdraw as counsel and a brief in support of that motion, in which he avers that, in his professional opinion, this appeal is frivolous. Counsel's brief and motion meet the requirements of Anders v. California, 386 U.S. 738, 744-45, 87 S.Ct. 1396, 1400 (1967), by professionally evaluating the appellate record and demonstrating why no arguable grounds for relief exist. See Stafford v. State, 813 S.W.2d 503, 510-11 &n.3 (Tex. Crim. App. 1991). Counsel also complied with Kelly v. State, 436 S.W.3d 313, 319 (Tex. Crim. App. 2014) (requiring appointed counsel to notify the client that the motion and brief have been filed, to provide the client a copy of each, and to take steps to assist the client in understanding his pro se rights, effectuating those rights, and securing pro se access to the record).
This court gave Pool the opportunity to file a response on his own behalf, but he did not do so. Likewise, the State did not file a response.
After an appellant's court-appointed counsel files a motion to withdraw on the ground that an appeal is frivolous and fulfills Anders's requirements, we must independently examine the record for any arguable ground that may be raised on his behalf. See Stafford, 813 S.W.2d at 511. Only then may we grant counsel's motion to withdraw. See Penson v. Ohio, 488 U.S. 75, 82-83, 109 S.Ct. 346, 351 (1988).
We have carefully reviewed counsel's brief and the appellate record. We agree with counsel that--but for a minor modification to the judgment for an improperly assessed cost--the appeal is wholly frivolous and without merit; we find nothing in the appellate record that otherwise arguably might support the appeal. See Bledsoe v. State, 178 S.W.3d 824, 827-28 (Tex. Crim. App. 2005); see also Meza v. State, 206 S.W.3d 684, 685 n.6 (Tex. Crim. App. 2006).
The bill of costs in the clerk's record reflects that Pool owes $455, the amount of costs assessed in the judgment. But three of those costs--(1) $20 for Commitment to Jail, (2) $20 for Release from Jail, and (3) $40 for Taking &Approving Bond Fee, a total of $80--impermissibly include costs related to the three counts for which Pool was not convicted. For the single assault offense for which he was convicted, Pool was committed to and released from jail twice; thus, the total cost for Commitment to Jail should be $10 ($5 per commitment), and the total cost for Release from Jail should be $10 ($5 per release). See Tex. Code Crim. Proc. Ann. art. 102.011(a)(6) ("A defendant convicted of a felony or a misdemeanor shall pay the following reimbursement fees to defray the cost of the services provided in the case by a peace officer: . . . $5 for commitment or release ...." (emphasis added)), art. 102.011(e) ("A reimbursement fee under Subsection (a)(1) or (2) shall be assessed on conviction, regardless of whether the defendant was also arrested at the same time for another offense, and shall be assessed for each arrest made of a defendant arising out of the offense for which the defendant has been convicted." (emphasis added)). But cf. Guerra v. State, 547 S.W.3d 445, 447 (Tex. App.-Houston [14th Dist.] 2018, no pet.) (holding that subsection (e) allowed assessment of arrest fee twice when defendant was arrested once for two offenses but then convicted of both of those offenses). And the record shows that Pool obtained only two bonds for the assault offense for which he was convicted; thus, the total cost for Taking &Approving Bond Fee should be $20. See Tex. Code Crim. Proc. Ann. art. 102.011(a)(5). We therefore conclude that the court costs imposed in the judgment should be reduced by $40.
Having found that the appeal is frivolous, we grant counsel's motion to withdraw. We modify the trial court's Count Two judgment to reflect total Court Costs (and Total Amount to be Paid) of $415, and we modify the Order to Withdraw Funds attached as Attachment A to show that "[c]ourt costs, fees[,] and/or fines[,] and/or restitution have been incurred in the amount of $415" and to authorize withdrawal only up to that amount. See Cates v. State, 402 S.W.3d 250, 252 (Tex. Crim. App. 2013) (holding that modification is proper remedy). We affirm the judgment as modified. See Tex.R.App.P. 43.2(b).