Anthony Michael Martino v. State

• Court: Court of Appeals of Texas
• Decided: August 16, 2019
• Docket: 06-19-00077-CR
• Status: Published

Opinion

In The Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06-19-00077-CR

ANTHONY MICHAEL MARTINO, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 173rd District Court Henderson County, Texas Trial Court No. CR17-0201-173

Before Morriss, C.J., Burgess and Stevens, JJ. Memorandum Opinion by Justice Burgess MEMORANDUM OPINION Anthony Michael Martino pled guilty to aggravated sexual assault of a child. 1 Following

a bench trial on punishment, Martino was sentenced to twenty years’ incarceration.

Martino’s appellate counsel filed a brief that outlined the procedural history of the case,

provided a detailed summary of the evidence elicited during the trial court proceedings, and stated

that counsel found no meritorious issues to raise on appeal. 2 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 filed a motion with this Court seeking to withdraw as

counsel in this appeal and provided Martino with a copy of the brief, the appellate record, and the

motion to withdraw. Counsel also informed Martino of his right to review the record and file a

pro se response. By letter dated June 19, 2019, this Court advised Martino that his pro se response,

if any, was due on or before July 19, 2019. By letter dated July 24, 2019, this Court advised

Martino that this case was set for submission on August 14, 2019. Martino has not filed a pro se

response and has not requested an extension of time in which to file such a response.

1 See TEX. PENAL CODE ANN. § 22.021(a)(2)(B). 2 Originally appealed to the Twelfth Court of Appeals in Tyler, this case was transferred to this Court by the Texas Supreme Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001. We are unaware of any conflict between precedent of the Twelfth Court of Appeals and that of this Court on any relevant issue. See TEX. R. APP. P. 41.3.

2 However, in Anders cases, appellate courts “have the authority to reform judgments and

affirm as modified in cases where there is non reversible error.” Ferguson v. State, 435 S.W.3d

291, 294 (Tex. App.—Waco 2014, pet. struck) (comprehensively discussing appellate cases that

have modified judgments in Anders cases). We note that the trial court’s judgment ordered

Martino to pay $1,550.00 in attorney fees for court-appointed counsel. The record establishes that

Martino is indigent. Under Article 26.05(g) of the Texas Code of Criminal Procedure, a trial court

has the authority to order the reimbursement of court-appointed attorney fees only if “the court

determines that a defendant has financial resources that enable him to offset in part or in whole the

costs of the legal services provided, including any expenses and costs.” TEX. CODE CRIM. PROC.

ANN. art. 26.05(g) (Supp.). “[T]he defendant’s financial resources and ability to pay are explicit

critical elements in the trial court’s determination of the propriety of ordering reimbursement of

costs and fees” of legal services provided. Armstrong v. State, 340 S.W.3d 759, 765–66 (Tex.

Crim. App. 2011) (quoting Mayer v. State, 309 S.W.3d 552, 556 (Tex. Crim. App. 2010)).

Here, the record is devoid of any determination or finding by the trial court that Martino

had financial resources or was otherwise able to pay the appointed attorney fees. Thus, the

assessment of attorney fees was erroneous and should be removed. Cates v. State, 402 S.W.3d

250, 252 (Tex. Crim. App. 2013); see Mayer v. State, 309 S.W.3d 552, 556 (Tex. Crim. App.

2010); Martin v. State, 405 S.W.3d 944, 946–47 (Tex. App.—Texarkana 2013, no pet.). We,

therefore, modify the judgment by deleting the assessment of attorney fees.

3 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).

In the Anders context, once we determine that the appeal is without merit, we must either

dismiss the appeal or affirm the trial court’s judgment. See Anders, 386 U.S. 738.

We affirm the judgment of the trial court, as modified. 3

Ralph K. Burgess Justice

Date Submitted: August 14, 2019 Date Decided: August 16, 2019

Do Not Publish

3 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, 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 (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.