Ruddy Joseph Herrera v. the State of Texas

NUMBER 13-21-00325-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG RUDDY JOSEPH HERRERA, Appellant,

v. THE STATE OF TEXAS, Appellee.

On appeal from the County Court of Gonzales County, Texas.

MEMORANDUM OPINION Before Chief Justice Contreras and Justices Longoria and Tijerina Memorandum Opinion by Justice Tijerina

Appellant Ruddy Joseph Herrera was convicted of assault family violence, a Class A misdemeanor, and was sentenced to ninety days’ confinement. See TEX. PENAL CODE ANN. § 22.01(a)(1). Appellant’s court-appointed counsel has filed an Anders brief stating that there are no arguable grounds for appeal. See Anders v. California, 386 U.S. 738, 744 (1967). We affirm the trial court’s judgment as modified.

I. ANDERS BRIEF

Pursuant to Anders v. California, appellant’s court-appointed appellate counsel filed a brief and a motion to withdraw with this Court, stating that his review of the record yielded no grounds of reversible error upon which an appeal could be predicated. See id. Counsel’s brief meets the requirements of Anders as it presents a professional evaluation demonstrating why there are no arguable grounds to advance on appeal. See In re Schulman, 252 S.W.3d 403, 406 n.9 (Tex. Crim. App. 2008) (orig. proceeding) (“In Texas, an Anders brief need not specifically advance ‘arguable’ points of error if counsel finds none, but it must provide record references to the facts and procedural history and set out pertinent legal authorities.” (citing Hawkins v. State, 112 S.W.3d 340, 343–44 (Tex. App.—Corpus Christi–Edinburg 2003, no pet.))); Stafford v. State, 813 S.W.2d 503, 510 n.3 (Tex. Crim. App. 1991).

In compliance with High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel Op.] 1978) and Kelly v. State, 436 S.W.3d 313, 319–22 (Tex. Crim. App. 2014), appellant’s counsel carefully discussed why, under controlling authority, there is no reversible error in the trial court’s judgment. Appellant’s counsel also informed this Court in writing that he: (1) notified appellant that counsel has filed an Anders brief and a motion to withdraw; (2) provided appellant with copies of both pleadings; (3) informed appellant of his rights to file a pro se response, to review the record prior to filing that response, and to seek discretionary review if we conclude that the appeal is frivolous; and (4) provided appellant with a form motion for pro se access to the appellate record that only requires appellant’s signature and date with instructions to file the motion within ten days. *3 See Anders, 386 U.S. at 744; Kelly, 436 S.W.3d at 319–20; see also In re Schulman, 252 S.W.3d at 408–09. In this case, appellant filed neither a timely motion seeking pro se access to the appellate record nor a motion for extension of time to do so. Appellant did not file a pro se response.

II. INDEPENDENT REVIEW

Upon receiving an Anders brief, we must conduct a full examination of all the proceedings to determine whether the case is wholly frivolous. Penson v. Ohio, 488 U.S. 75, 80 (1988). We have reviewed the record and counsel’s brief, and we have found nothing that would arguably support an appeal. See Bledsoe v. State, 178 S.W.3d 824, 827–28 (Tex. Crim. App. 2005) (“Due to the nature of Anders briefs, by indicating in the opinion that it considered the issues raised in the briefs and reviewed the record for reversible error but found none, the court of appeals met the requirements of Texas Rule of Appellate Procedure 47.1.”); Stafford, 813 S.W.2d at 511.

III. MOTION TO WITHDRAW

In accordance with Anders, appellant’s counsel has asked this Court for permission to withdraw as counsel. See Anders, 386 U.S. at 744; see also In re Schulman, 252 S.W.3d at 408 n.17. We grant counsel’s motion to withdraw. Within five days from the date of this Court’s opinion, counsel is ordered to send a copy of this opinion and this Court’s judgment to appellant and to advise him of his right to file a petition for discretionary review.¹ See TEX. R. APP. P. 48.4; see also In re Schulman, 252 S.W.3d at *4 412 n.35; Ex parte Owens, 206 S.W.3d 670, 673 (Tex. Crim. App. 2006).

IV. ATTORNEY’S FEES

Appellate counsel notified us that the trial court’s judgment of conviction improperly orders appellant to pay the attorney’s fees for his court-appointed counsel. 2 The judgment states that appellant must pay $520 in “court costs.” However, as pointed out by appellate counsel, the trial court’s bill of costs reflecting a $520 total includes a charge for $225 for court appointed attorney’s fees. An indigent defendant may not be required to pay attorney’s fees. See Wiley v. State, 410 S.W.3d 313, 315, 317 (Tex. Crim. App. 2013) (providing that the trial court is not authorized to impose an award of attorney’s fees in the judgment against a defendant who remains indigent when the judgment is pronounced); Mayer v. State, 309 S.W.3d 552, 553 (Tex. Crim. App. 2010).

We have the authority to modify incorrect judgments when the necessary information is available to us. See TEX. R. APP. P. 43.2(b) (authorizing court of appeals to modify trial court’s judgment and affirm it as modified); Bigley v. State, 865 S.W.2d 26, 27–28 (Tex. Crim. App. 1993). Accordingly, we modify the judgment of conviction to reflect that appellant will pay $295 in court costs. See TEX. R. APP. P. 43.2(b); Wiley, 410 S.W.3d at 315, 317; Mayer, 309 S.W.3d at 553.

IV. CONCLUSION

We affirm the trial court’s judgment as modified.

JAIME TIJERINA Justice

Do not publish. TEX. R. APP. P. 47.2(b).

Delivered and filed on the 25th day of August, 2022.

Footnotes

[1] No substitute counsel will be appointed. Should appellant 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 date of either this opinion or the last timely motion for rehearing or timely motion for en banc reconsideration that was overruled by this Court. See TEX. R. APP. P. 68.2. Any petition for discretionary review must be filed with the Clerk of the Texas Court of Criminal Appeals. See id. R. 68.3. Any petition for discretionary review should comply with the requirements of Texas Rule of Appellate Procedure 68.4. See id. R. 68.4.

[2] The trial court initially found appellant indigent and appointed counsel to represent him. No evidence has been presented on appeal or in the trial court that appellant’s financial circumstances have materially changed. Therefore, we must presume that appellant remains indigent for the remainder of these proceedings. See TEX. CODE CRIM. PROC. ANN. art. 26.04(p).