Clarence Dwight Hines v. State

• Court: Court of Appeals of Texas
• Decided: May 29, 2014
• Docket: 10-13-00292-CR
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-13-00286-CR No. 10-13-00292-CR

CLARENCE DWIGHT HINES, Appellant v.

THE STATE OF TEXAS, Appellee

From the 54th District Court McLennan County, Texas Trial Court Nos. 2012-1945-C2 and 2012-1946-C2

MEMORANDUM OPINION

In these two cases, which were consolidated for trial, Appellant Clarence Dwight

Hines was convicted of the felony offenses of possession with intent to deliver cocaine

(four grams or more but less than 200 grams) and unlawful possession of a firearm by a

felon, respectively. For both cases, the jury found the enhancement paragraphs to be

true and assessed prison sentences of thirty-five and three years, respectively.

Hines’s appointed appellate counsel has filed a motion to withdraw and an

Anders brief in each case, asserting that he has diligently reviewed the appellate records and that, in his opinion, the appeals are frivolous. See Anders v. California, 386 U.S. 738,

87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Although informed of his right to do so, Hines did

not file pro se responses to the Anders briefs.

In an Anders case, we must, “after a full examination of all the proceedings, []

decide whether the case is wholly frivolous.” Id. at 744, 87 S. Ct. at 1400; 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, 1902 n.10, 100 L. Ed.2d 440 (1988).

Despite concluding that these appeals are frivolous, Hines’s appointed counsel

noted and briefed alleged errors in both judgments. Counsel alleges the following

errors in the judgment in No. 10-13-00286-CR (Trial Court No. 2012-1945-C2):

 The judgment incorrectly recites “N/A” regarding Hines’s pleas and the jury’s findings as to the enhancement paragraphs, but Hines pled true to the first enhancement paragraph and not true to the second, and the jury found both to be true.

 Despite being indigent, Hines was assessed $75.00 in court-appointed attorney’s fees.

Counsel alleges the following errors in the judgment in No. 10-13-00292-CR

(Trial Court No. 2012-1946-C2):

 The judgment incorrectly cites “46.04 Texas Controlled Substances Act” as the statute for the offense; it should cite “46.04 Texas Penal Code.”

 The judgment incorrectly recites that Hines pled true to the enhancement; he pled not true.

And in each case, counsel alleges that the assessed court costs are incorrect

because they include a $219.00 filing fee when the statutory assessment is $40.00.

Hines v. State Page 2 Citing Hall v. State, No. 06-09-00106-CR, 2010 WL 619349 (Tex. App.—Texarkana

Feb. 23, 2010, no pet.) (mem. op., not designated for publication), counsel asserts that,

despite the Anders briefs, we can correct the alleged errors and affirm the judgments as

corrected. At the time of the filing of the Anders briefs, counsel did not have the benefit

of our two recent rulings that addressed this issue. In McElwain v. State, No. 10-13-

00291-CR, ___ S.W.3d ___, 2014 WL 895198 (Tex. App.—Waco Mar. 6, 2014, order), the

majority held that the appeal was not frivolous because the indigent defendant had

been erroneously assessed attorney’s fees in the judgment and his court-appointed

appellate counsel had not addressed that arguable ground. Id., ___ S.W.3d at ___, 2014

WL 895198, at *1. The Court therefore abated the appeal for trial court to appoint new

counsel to advance the arguable ground. Id., ___ S.W.3d at ___, 2014 WL 895198, at *2.

In Ferguson v. State, No. 10-13-00173-CR, ___ S.W.3d ___, 2014 WL 895196 (Tex.

App.—Waco Mar. 6, 2014, no pet. h.), appellant’s counsel filed an Anders brief stating

that there was no reversible error but noting that there was an error in the judgment

regarding the victim’s age at the time of the offense. Id., ___ S.W.3d at ___, 2014 WL

895196, at *1-2. Under those circumstances, we modified the judgment and affirmed the

judgment as modified. Id., ___ S.W.3d at ___, 2014 WL 895196, at *3. In a concurring

opinion joined by Justice Davis, Chief Justice Gray noted that counsel’s Anders brief was

actually a brief on the merits because it had pointed out and briefed an error in the

judgment. Id., ___ S.W.3d at ___, 2014 WL 895196, at *5.

These two cases are like Ferguson: Despite finding no reversible error, counsel

Hines v. State Page 3 has identified alleged errors in the judgments.1 We will therefore treat the briefs as

briefs on the merits and address the alleged errors.2 See id.

Regarding the enhancement pleas and findings, counsel is correct in both cases.

Accordingly, in No. 10-13-00286-CR (Trial Court No. 2012-1945-C2), we modify the

judgment to reflect that the plea to the first enhancement paragraph is “TRUE,” the plea

to the second enhancement/habitual paragraph is “NOT TRUE,” the finding on the first

enhancement paragraph is “TRUE,” and the finding on the second

enhancement/habitual paragraph is “TRUE.” And in No. 10-13-00292-CR (Trial Court

No. 2012-1946-C2), we modify the judgment to reflect that the plea to the first

enhancement paragraph is “NOT TRUE.”

In No. 10-13-00286-CR (Trial Court No. 2012-1945-C2), because Hines was

indigent and is presumed to remain indigent absent record proof of a material change

in his circumstances, the judgment incorrectly assessed $75.00 in court-appointed

attorney’s fees. See TEX. CODE CRIM. PROC. ANN. arts. 26.04(p), 26.05(g) (West Supp.

2013); Mayer v. State, 309 S.W.3d 552, 557 (Tex. Crim. App. 2010); Watkins v. State, 333

S.W.3d 771, 781-82 (Tex. App.—Waco 2010, pet. ref’d). Accordingly, we modify the

judgment’s court costs by deleting $75.00 from the assessed court costs of $444.00 for a

corrected court costs amount of $369.00.

In No. 10-13-00292-CR (Trial Court No. 2012-1946-C2), counsel is correct that the

1 We have conducted an independent review of the records, and we agree that no reversible error exists in these appeals.

2 Accordingly, counsel’s motions to withdraw are dismissed as moot.

Hines v. State Page 4 statutory offense is incorrect, so we therefore modify the judgment to reflect the statute

for the offense to be “46.04 Texas Penal Code.”

Finally, we address the allegedly incorrect clerk’s filing fee amount of $219.00 in

each case. Counsel is correct that a convicted defendant is liable to the clerk for the

clerk’s services in the statutory fee amount of $40.00. TEX. CODE CRIM. PROC. ANN. art.

102.005(a) (West 2006). But counsel incorrectly assumes that the $219.00 fee is the fee

assessed under article 102.005(a); instead, as we have recently noted, the $40.00 fee is

included in the clerk’s $219.00 fee, which consists of a number of statutorily authorized

fees. See Cook v. State, No. 10-12-00204-CR, 2014 WL 1016242, at *1 (Tex. App.—Waco

Mar. 13, 2014, no pet. h.) (mem. op., not designated for publication); see also Hearne v.

State, 415 S.W.3d 365, 367 (Tex. App.—Houston [1st Dist.] 2013, pet. ref’d); Ballinger v.

State, 405 S.W.3d 346, 350 & n.5 (Tex. App.—Tyler 2013, no pet.). We therefore overrule

the request to modify the court costs in this respect.

Having otherwise modified the judgments as specified above, we affirm the

judgments as modified.

REX D. DAVIS Justice

Before Chief Justice Gray, Justice Davis, and Justice Scoggins (Justice Scoggins concurs) Affirmed as modified Opinion delivered and filed May 29, 2014 Do not publish [CRPM]

Hines v. State Page 5