Opinion
No. 04-17-00597-CR
11-07-2018
Donald Lee HALL, Appellant v. The STATE of Texas, Appellee
MEMORANDUM OPINION
From the 198th Judicial District Court, Kerr County, Texas
Trial Court No. B16-253
Honorable M. Rex Emerson, Judge Presiding Opinion by: Karen Angelini, Justice Sitting: Karen Angelini, Justice Marialyn Barnard, Justice Luz Elena D. Chapa, Justice AFFIRMED AS MODIFIED, MOTION TO WITHDRAW GRANTED
After appellant Donald Lee Hall pled guilty to the offense of driving while intoxicated (enhanced to a second-degree felony), the trial court sentenced Hall to ten years in prison. In its judgment, the trial court assessed attorney's fees against Hall in the amount of $1808.00. Additionally, the trial court clerk prepared a bill of costs including attorney's fees in the amount of $1808.00. Hall appealed.
On appeal, Hall's court-appointed appellate counsel has filed a brief and a motion to withdraw in accordance with Anders v. California, 386 U.S. 738, 744 (1967). Counsel's brief includes citations to relevant legal authorities and provides a professional evaluation of the record. Counsel states he has found no meritorious issues warranting reversal to bring forward on appeal. Counsel nevertheless argues the trial court's judgment should be modified to delete the assessment of attorney's fees, pointing out the evidence is insufficient to support the assessment of attorney's fees against Hall. Counsel's brief satisfies the requirements of Anders. See id. at 744; High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. 1978). Additionally, the record shows counsel provided Hall with copies of the brief and the motion to withdraw, advised Hall of his right to file a pro se brief, and informed Hall how to obtain a copy of the appellate record. See Kelly v. State, 436 S.W.3d 319-20 (Tex. Crim. App. 2014). Hall did not file a pro se brief.
After conducting an independent examination of the record, we find no reversible error. We conclude this appeal is wholly frivolous. However, because the record shows Hall is indigent we must modify the part of the judgment assessing attorney's fees against Hall. "A defendant who is determined by the court to be indigent is presumed to remain indigent for the remainder of the proceedings in the case unless a material change in the defendant's financial circumstances occurs." TEX. CODE CRIM. PROC. ANN. art. 26.04(p); see Cates v. State, 402 S.W.3d 250, 251 (Tex. Crim. App. 2013). Here, the record shows the trial court found Hall to be indigent and appointed counsel to represent him. Nothing in the record demonstrates a material change in Hall's financial circumstances. Without a showing of a material change in Hall's financial circumstances, it was error for the trial court to assess attorney's fees against Hall. See Cates, 402 S.W.3d at 251-52 (concluding there was no factual basis in the record to support an assessment of attorney's fees when the appellant had been determined to be indigent and there was never a finding that he could re-pay the costs of court-appointed attorney's fees).
We modify the judgment and the bill of costs to delete the assessment of any attorney's fees against Hall. See id. at 252 (modifying the judgment to delete erroneously assessed court- appointed attorney's fees); Green v. State, No. 04-13-00018-CR, 2013 WL 6200328, at *2 (Tex. App.—San Antonio Nov. 27, 2013, no pet.) (mem. op., not designated for publication) (modifying both the judgment and the bill of costs to delete the assessment of attorney's fees against an indigent criminal defendant). We order the trial court clerk to delete the attorney's fees from the bill of costs, and to prepare and file a corrected bill of costs in this case. See Benavidez v. State, 423 S.W.3d 520, 522 (Tex. App.—San Antonio 2014, no pet.) (ordering the trial court clerk to delete attorney's fees from the bill of costs and to prepare and file a corrected bill of costs). We affirm the judgment as modified and grant counsel's motion to withdraw. See Nichols v. State, 954 S.W.2d 83, 86 (Tex. App.—San Antonio 1997, no pet.) (providing that an appellate court must grant counsel's motion to withdraw after its independent examination of the record reveals that the appeal is frivolous).
No substitute counsel will be appointed. Should Hall wish to seek further review of this case by the Texas Court of Criminal Appeals, he 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 must be filed within thirty days from the later of (1) the date of this opinion; or (2) the date the last timely motion for rehearing is overruled by this court. See TEX. R. APP. P. 68.2. Any petition for discretionary review must be filed in the Texas Court of Criminal Appeals. See TEX. R. APP. P. 68.3. Any petition for discretionary review should comply with the requirements of Rule 68.4 of the Texas Rules of Appellate Procedure. See TEX. R. APP. P. 68.4.
Karen Angelini, Justice Do not publish