Opinion
No. 10-17-00275-CR No. 10-17-00276-CR
03-14-2018
ELIJAH DAVID VAUGHN, Appellant v. THE STATE OF TEXAS, Appellee
From the 54th District Court McLennan County, Texas
Trial Court Nos. 2015-1841-C2 & 2015-1842-C2
MEMORANDUM OPINION
Elisha David Vaughn pled guilty to two offenses of injury to a child. See TEX. PENAL CODE ANN. § 22.04 (West 2011). An adjudication of guilt was deferred, and Vaughn was placed on community supervision for five years. Almost two years later, the State filed a motion to adjudicate Vaughn in both cases. In one hearing, Vaughn pled not true to the State's motions, the trial court found two violations to be true, and sentenced Vaughn to 10 years in prison in each case. The sentences were ordered to run concurrently.
Vaughn's appellate attorney filed a motion to withdraw and an Anders brief in support of the motion to withdraw in each case, asserting that the appeals present no issues of arguable merit. See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967). Counsel advised Vaughn that counsel had filed the motion and brief pursuant to Anders and provided Vaughn a copy of the record, advised Vaughn of his right to review the record, and advised Vaughn of his right to submit a response on his own behalf. Vaughn did not submit a response.
Counsel asserts in the Anders brief that counsel has made a thorough review of the entire record, including the sufficiency of the evidence to support the trial court's finding of two violations of Vaughn's terms of community supervision, the sentence received by Vaughn, and the factual basis for the sentence. After the review, counsel has concluded there is no non-frivolous issue to raise in these appeals.
Upon the filing of an Anders brief, as the reviewing appellate court, it is our duty to independently examine the record to decide whether counsel is correct in determining that an appeal is frivolous. See Anders, 386 U.S. at 744; Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991). Arguments are frivolous when they "cannot conceivably persuade the court." McCoy v. Court of Appeals, 486 U.S. 429, 436, 108 S. Ct. 1895, 100 L. Ed. 2d 440 (1988).
Despite the conclusion that the appeal is frivolous, counsel has presented an issue that the trial court erred in assessing a fine of $500 in each case when no fine was orally pronounced at sentencing. Notwithstanding it is otherwise presented as an Anders brief and, moreover, we have performed the remainder of the normal due process requirements, both substantive and procedural, in Anders cases, we will consider this as a brief on the merits specifically as it relates to the issue of the appeal of erroneously assessed costs in criminal cases. See Price v. State, No. 10-13-00403-CR, 2014 Tex. App. LEXIS 10403 *2 (Tex. App.—Waco Sept. 18, 2014, no pet.) (not designated for publication).
We agree with counsel that the fine in each case was assessed in error. See Taylor v. State, 131 S.W.3d 497, 502 (Tex. Crim. App. 2004). Accordingly, the Judgment Adjudicating Guilt in trial court case number 2015-1841-C2 and the Judgment Adjudicating Guilt in trial court case number 2015-1842-C2 are modified to delete the assessed fines. As modified, we affirm the trial court's judgments and dismiss counsel's motions to withdraw as moot.
TOM GRAY
Chief Justice Before Chief Justice Gray, Justice Davis, and Justice Scoggins
Affirmed as modified
Motions dismissed
Opinion delivered and filed March 14, 2018
Do not publish
[CR25]