Opinion
NO. 01-15-00605-CR
02-14-2017
DEXTER KEITH ROYSTON, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 300th District Court Brazoria County, Texas
Trial Court Case No. 73277
MEMORANDUM OPINION
After withdrawing his plea of not guilty, Appellant, Dexter Keith Royston, pleaded guilty to the offense of Aggravated Assault-Habitual with a deadly weapon, and true to the enhancement paragraphs that Appellant had been convicted of burglary in 1989 and assault of a family member in 2013. While having previously elected to be sentenced by a jury, Appellant asked the trial court to assess punishment, and it assessed his punishment at forty years' imprisonment. This sentence is within the applicable range. See TEX. PENAL CODE ANN. §§ 12.32(a) (West 2011), 12.42(d) (West Supp. 2016). The trial court certified that this was not a plea-bargain case and that Appellant had a right to appeal. See TEX. R. APP. P. 25.2(a)(2). Appellant timely filed a notice of appeal.
See TEX. PENAL CODE ANN. §§ 1.07(a)(17) (West Supp. 2016), 22.02(b)(1) (West 2011).
Appellant's appointed counsel on appeal has filed a motion to withdraw along with an Anders brief stating that the record presents no reversible error and that, therefore, the appeal is without merit and is frivolous. See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396 (1967). Counsel's brief meets the Anders requirements by presenting a professional evaluation of the record and supplying this Court with references to the record and legal authority. See id. at 744, 87 S. Ct. at 1400; see also High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. 1978). Counsel indicates that he has thoroughly reviewed the record and that he is unable to advance any grounds of error that warrant reversal. See Anders, 386 U.S. at 744, 87 S. Ct. at 1400; Mitchell v. State, 193 S.W.3d 153, 155 (Tex. App.—Houston [1st Dist.] 2006, no pet.).
Appellant's counsel has informed us that he served on Appellant, both a copy of the motion to withdraw and a letter informing him of his right to object to the motion. See In re Schulman, 252 S.W.3d 403, 408 (Tex. Crim. App. 2008). Appellant also requested and received a copy of the record. See Kelly v. State, 436 S.W.3d 313, 320 n.22, 322 (Tex. Crim. App. 2014).
Appellant filed a pro se Anders response asserting five points of error. First, Appellant objects to the use of his 1989 burglary conviction to enhance his current sentence because the conviction was barred by Texas Rule of Evidence 609(b) because it was over ten years old. See TEX. R. EVID. 609. Second, Appellant argues he was denied effective assistance of counsel and due process of law because his trial counsel failed to offer mitigating evidence of his alcohol addiction during the punishment phase of the trial. Third, Appellant asserts the trial court erred in denying his motion for new trial. Fourth, Appellant asserts his appellate attorney did not "raise the illegal enhancement" issue on appeal. Id. Fifth, Appellant re-raises his second issue.
Because we find insufficient support for these issues, we need not address the merits of each claim. Bledsoe v. State, 178 S.W.3d 824, 826-28 (Tex. Crim. App. 2005) (reviewing court is not to address merits of each claim raised in Anders brief or pro se response after determining there are no arguable grounds for review).
We have independently reviewed the entire record in this appeal, and we conclude that only two errors exist in the judgment, but there are no other arguable grounds for review, and that therefore the appeal is frivolous. See Anders, 386 U.S. at 744, 87 S. Ct. at 1400 (emphasizing that reviewing court—and not counsel—determines, after full examination of proceedings, whether appeal is wholly frivolous); Garner v. State, 300 S.W.3d 763, 767 (Tex. Crim. App. 2009) (reviewing court must determine whether arguable grounds for review exist); Mitchell, 193 S.W.3d at 155-56 (reviewing court determines whether arguable grounds exist by reviewing entire record). An appellant may challenge a holding that there are no arguable grounds for appeal by filing a petition for discretionary review in the Texas Court of Criminal Appeals. See Bledsoe, 178 S.W.3d at 827 n.6.
As to the first error, we note that the judgment lists "N/A" by the second enhancement paragraph concerning assault of a family member, rather than "True." Because the record reflects that Appellant pleaded true to the second enhancement paragraph, we modify the judgment to show that Appellant pleaded true to the second enhancement paragraph and its findings. See TEX. R. APP. P. 43.2(b); See Mayer v. State, 309 S.W.3d 552, 557 (Tex. Crim. App. 2010); French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992) (holding appellate courts can reform judgments when evidence is before them).
As to the second error, Appellant and State's counsel note to this Court that the judgment awards $4,512.50 in attorney's fees, when it should have awarded no attorney's fees, because the trial court found Appellant to be indigent. A finding of indigence remains until the defendant's circumstances change. TEX. CODE CRIM. PROC. ANN. art. 26.04(p) (West Supp. 2016); Mayer, 309 S.W.3d at 557. Both Appellant's counsel and the State assert that the record contains no evidence showing Appellant was no longer indigent and was able to pay attorney's fees. We agree. Because we have the necessary information before us to modify the judgment, we modify the judgment to remove the assessment of attorney's fees. TEX. R. APP. P. 43.2(b); Mayer, 309 S.W.3d at 557; French, 830 S.W.2d at 609; West v. State, 474 S.W.3d 785, 795 (Tex. App.—Houston [14th Dist.] 2014, no pet.) (holding that trial court erred in assessing attorney's fees against an indigent defendant and removing them from the judgment).
CONCLUSION
Accordingly, we affirm the judgment of the trial court, as modified, and grant counsel's motion to withdraw. See TEX. R. APP. P. 43.2(a). Attorney Kevin P. Keating must immediately send the required notice and file a copy of that notice with the Clerk of this Court. See TEX. R. APP. P. 6.5(c). We dismiss any other pending motions as moot.
Appointed counsel still has a duty to inform Appellant of the result of this appeal and that he may, on his own, pursue discretionary review in the Texas Court of Criminal Appeals. See Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005).
PER CURIAM Panel consists of Chief Justice Radack and Justices Jennings and Lloyd. Do not publish. TEX. R. APP. P. 47.2(b).