Bobby Joe Waller v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: December 7, 2022
• Docket: 10-22-00032-CR
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-22-00032-CR

BOBBY JOE WALLER, Appellant v.

THE STATE OF TEXAS, Appellee

From the 440th District Court Coryell County, Texas Trial Court No. 21-26796

MEMORANDUM OPINION

Bobby Joe Waller was convicted of failure to register as a sex offender and

sentenced to six years in prison. See TEX. CODE CRIM. PROC. art. 62.202(b)(2).

Waller’s appointed counsel filed a motion to withdraw and a brief in support of

the motion asserting that he has diligently reviewed the appellate record and that, in his

opinion, the appeal is frivolous pursuant to the United States Supreme Court opinion in

Anders, but also presenting nonreversible error in the judgment pursuant to this Court’s

order in Allison. See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967); Allison v. State, 609 S.W.3d 624, 628 (Tex. App.—Waco 2020, order).

Counsel's brief evidences a professional evaluation of the record for error and

compliance with the other duties of appointed counsel. We conclude that counsel has

performed the duties required of appointed counsel. See Anders v. California, 386 U.S. at

744; High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. 1978); see also Kelly v. State, 436

S.W.3d 313, 319-320 (Tex. Crim. App. 2014); In re Schulman, 252 S.W.3d 403, 407 (Tex.

Crim. App. 2008).

In reviewing the Anders portion of this appeal, we must, "after a full examination

of all the proceedings, ... decide whether the case is wholly frivolous." Anders, 386 U.S. at

744; see Penson v. Ohio, 488 U.S. 75, 80, 109 S. Ct. 346, 102 L. Ed. 2d 300 (1988); accord Stafford

v. State, 813 S.W.2d 503, 509-11 (Tex. Crim. App. 1991). An appeal is "wholly frivolous"

or "without merit" when it "lacks any basis in law or fact." McCoy v. Court of Appeals, 486

U.S. 429, 439 n. 10, 108 S. Ct. 1895, 100 L. Ed. 2d 440 (1988). After a review of the entire

record in this appeal, we have determined the appeal to be wholly frivolous. See Bledsoe

v. State, 178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005); Cummins v. State, 646 S.W.3d 605,

620-621(Tex. App.—Waco 2022, pet. ref'd).

As noted previously, despite finding no reversible error, counsel has presented an

issue of nonreversible error, that being, a $15.00 time payment fee. The State did not file

a brief in response to this alleged error. See Cummins, 646 S.W.3d at 615 (“the State is

expected to file a response addressing the merits of the nonreversible error presented in

the Allison brief. See, e.g., Price [v. State], [No. 10-13-00403-CR,] 2014 Tex. App. LEXIS

10403, []*2 [(Tex. App.—Waco Sep. 18, 2014, no pet.)] (parenthetical omitted).”

Waller v. State Page 2 We agree that this is a nonreversible error. Any time payment fee assessed or

threatened is premature. See Dulin v. State, 620 S.W.3d 129, 133 (Tex. Crim. App. 2021).

Accordingly, the trial court’s judgment is modified to assess court cost in the

amount of $290.00. As modified, the trial court’s judgment is affirmed, 1 and counsel's

motion to withdraw from representation of Waller is granted.

TOM GRAY Chief Justice

Before Chief Justice Gray, Justice Johnson, and Justice Smith Affirmed as modified; motion granted Opinion delivered and filed December 7, 2022 Do not publish [CR25]

1 The bill of cost should be modified to reflect the cost due in the judgment as modified.

Waller v. State Page 3