Opinion
11-19-00255-CR
07-08-2021
DARRELL JAN PORTER, Appellant v. THE STATE OF TEXAS, Appellee
Do not publish. See TEX. R. APP. P. 47.2(b).
On Appeal from the 244thDistrict Court Ector County, Texas Trial Court Cause No. C-18-1229-CR.
Panel consists of: Bailey, C.J., Trotter, J., and Williams, J.
MEMORANDUM OPINION ON REMAND
PER CURIAM
Appellant, Darrell Jan Porter, waived his right to a jury and entered an open plea of guilty to the third-degree felony offense of assault family violence. Appellant also pleaded true to an enhancement allegation. The trial court found Appellant guilty, found the enhancement allegation to be true, and assessed Appellant's punishment at confinement for fifteen years. We modify the trial court's judgment and affirm as modified.
Appellant's court-appointed counsel has filed a motion to withdraw. The motion is supported by a brief in which counsel professionally and conscientiously examines the record and applicable law and concludes that this appeal is without merit. Counsel has provided Appellant with a copy of the brief, a copy of the motion to withdraw, a copy of the clerk's record and the reporter's record, and an explanatory letter. Counsel advised Appellant of his right to review the record and file a response to counsel's brief. Counsel also advised Appellant of his right to file a petition for discretionary review in order to seek review by the Texas Court of Criminal Appeals. See TEX. R. APP. P. 68. Court-appointed counsel has complied with the requirements of Anders v. California, 386 U.S. 738 (1967); Kelly v. State, 436 S.W.3d 313 (Tex. Crim. App. 2014); In re Schulman, 252 S.W.3d 403 (Tex. Crim. App. 2008); and Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991).
Appellant has not filed a response to counsel's Anders brief. Following the procedures outlined in Anders and Schulman, we have independently reviewed the record, and we agree with counsel that no arguable grounds for appeal exist.
We note that Appellant has a right to file a petition for discretionary review pursuant to Rule 68 of the Texas Rules of Appellate Procedure.
We note, however, that the judgment contains a nonreversible error. In the judgment, the trial court ordered Appellant to pay court costs, including a Time Payment Fee of $25. In light of the recent opinion of the Court of Criminal Appeals in Dulin, we conclude that the time payment fee must be struck in its entirety as prematurely assessed. See Dulin v. State, 620 S.W.3d 129, 133 &n.29 (Tex. Crim. App. 2021). When the trial court erroneously includes fees as court costs, we should modify the trial court's judgment to remove the improperly assessed fees. See Cates v. State, 402 S.W.3d 250, 252 (Tex. Crim. App. 2013).
Accordingly, we modify the trial court's judgment and the bill of cost to delete the time payment fee of $25, without prejudice to a time payment fee being assessed later "if, more than 30 days after the issuance of the appellate mandate, [Appellant] has failed to completely pay any fine, court costs, or restitution that he owes." See Dulin, 620 S.W.3d at 133.
We grant counsel's motion to withdraw; modify the judgment of the trial court as set forth above; and, as modified, affirm the judgment of the trial court.