Opinion
06-21-00024-CR
06-07-2022
BRYAN SETH WILLIAMS, Appellant v. THE STATE OF TEXAS, Appellee
Do Not Publish
Date Submitted: June 6, 2022
On Appeal from the 188th District Court Gregg County, Texas Trial Court No. 48328-A
Before Morriss, C.J., Stevens and van Cleef, JJ.
MEMORANDUM OPINION
Scott E. Stevens Justice
A trial court found Bryan Seth Williams guilty of aggravated assault, a second-degree felony. See Tex. Penal Code Ann. § 22.02(a)(2) (Supp.). After a bench trial on punishment, Williams was sentenced to six years' imprisonment. Williams appeals.
Williams also appeals his conviction for family violence assault with a prior conviction for family violence assault in companion cause number 06-21-00023-CR.
Williams's attorney has filed a brief which states that she has reviewed the record and has found no genuinely arguable issues that could be raised on appeal. The brief sets out the procedural history of the case and summarizes the evidence elicited during the course of the trial court proceedings. Meeting the requirements of Anders v. California, counsel has provided a professional evaluation of the record demonstrating why there are no arguable grounds to be advanced. Anders v. California, 386 U.S. 738, 743-44 (1967); In re Schulman, 252 S.W.3d 403, 406 (Tex. Crim. App. 2008) (orig. proceeding); Stafford v. State, 813 S.W.2d 503, 509-10 (Tex. Crim. App. 1991); High v. State, 573 S.W.2d 807, 812-13 (Tex. Crim. App. [Panel Op.] 1978). Counsel also filed a motion with this Court seeking to withdraw as counsel in this appeal.
On September 24, 2021, counsel mailed to Williams copies of the brief, the motion to withdraw, and a motion for pro se access to the record lacking only Williams's signature. Williams was informed of his rights to review the record and file a pro se response. This Court granted Williams's motion for pro se access to the appellate record, which was mailed to Williams on December 7. We also granted Williams's motion for an extension of time to file his pro se brief and, by letter dated March 1, 2022, informed Williams that any pro se response was due on or before March 31. This Court further extended the deadline for Williams to file a pro se response to May 1 and informed him that further extensions would not be granted. On May 16, this Court notified Williams that the case would be set for submission on the briefs on June 6. While we received letters from Williams, we did not receive a pro se response.
In an April 7 letter, Williams complains that he was not given a copy of the Anders brief. However, his counsel's September 24, 2021, correspondence demonstrates that she sent Williams a copy of the Anders brief, labeled "Opening Brief on Behalf of Appellant," in the same package as the motion for pro se access to the appellate record, which Williams clearly received. This Court also received counsel's assurances that she mailed the brief to Williams a second time.
We have reviewed the entire appellate record and have independently determined that no reversible error exists. See Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005). However, non-reversible error is found in the amount of court costs imposed.
The clerk's bill of costs in this case totaled $249.00, but the trial court's judgment ordered Williams to pay $394.00 in court costs. Because the amount of court costs contained in the judgment is not supported by the bill of costs, it must be modified. Also, the bill of costs includes a $25.00 time payment fee, which was incorporated in the trial court's judgment. The Texas Court of Criminal Appeals has recently concluded that a time payment fee like the one imposed here "must indeed be struck for being prematurely assessed because a defendant's appeal suspends the duty to pay court costs and therefore suspends the running of the clock for the purposes of the time payment fee." Dulin v. State, 620 S.W.3d 129, 129 (Tex. Crim. App. 2021). "As a consequence, even now, assessment of the time payment fee in this case would be premature because appellate proceedings are still pending." Id.
This Court has the authority to modify incorrect judgments when it has the information necessary to do so. See Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993); Rhoten v. State, 299 S.W.3d 349, 356 (Tex. App.-Texarkana 2009, no pet.). Pursuant to Dulin, we strike the time payment fee "in [its] entirety, without prejudice to [it] being assessed later if, more than 30 days after the issuance of the appellate mandate, the defendant has failed to completely pay any fine, court costs, or restitution" owed. Dulin, 620 S.W.3d at 133.
We modify the bill of costs and judgment by deleting the time payment fee and to reflect that the amount of court costs owed is $224.00. As modified, we affirm the trial court's judgment.
Since we agree that this case presents no reversible error, we also, in accordance with Anders, grant counsel's request to withdraw from further representation of appellant in this case. See Anders, 386 U.S. at 744. No substitute counsel will be appointed. Should appellant desire to seek further review of this case by the Texas Court of Criminal Appeals, appellant 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 (1) must be filed within thirty days from either the date of this opinion or the date on which the last timely motion for rehearing was overruled by this Court, see Tex. R. App. P. 68.2, (2) must be filed with the clerk of the Texas Court of Criminal Appeals, see Tex. R. App. P. 68.3, and (3) should comply with the requirements of Rule 68.4 of the Texas Rules of Appellate Procedure, see Tex. R. App. P. 68.4.