Cordell William Dalrymple v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: November 16, 2022
• Docket: 10-21-00170-CR
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-21-00170-CR

CORDELL WILLIAM DALRYMPLE, Appellant v.

THE STATE OF TEXAS, Appellee

From the 54th District Court McLennan County, Texas Trial Court No. 2019-652-C2

MEMORANDUM OPINION

Cordell William Dalrymple was convicted of two counts of aggravated sexual

assault of a child and sentenced to 40 years in prison for each count. See TEX. PENAL CODE

§ 22.021. A separate judgment of conviction was signed for each count.

Dalrymple’s appellate attorney 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 judgments 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

performed the duties required of appointed counsel. See Anders, 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

one issue of nonreversible error, that the trial court erred in assessing costs in both counts

in violation of Texas Code of Criminal Procedure article 102.073(a), the “single criminal

action” provision. Where allegations and evidence of more than one offense are

presented in a single trial or plea proceeding, the trial court errs in assessing costs in each

conviction. Hurlburt v. State, 506 S.W.3d 199, 203-204 (Tex. App.—Waco 2016, no pet.).

Dalrymple v. State Page 2 The State concedes that the judgments for both counts should be reformed to reflect that

costs are assessed in only one judgment. We agree that costs should have been assessed

in either Count I or Count II, but not both. See Hurlburt v. State, 506 S.W.3d 199, 203-204

(Tex. App.—Waco 2016, no pet.). Accordingly, we modify the judgment in Count II to

strike the portion of the “special findings or orders” section on page 2 of the trial court’s

judgment which states,

“The Court adjudges statutory court costs against the defendant. The Court orders the defendant to pay all statutory court costs. The Court orders the clerk to collect all statutory court costs.”1

Therefore, because only one judgment is modified, the trial court's Judgment of

Conviction by Jury, Count I, is affirmed, the trial court’s Judgment of Conviction by Jury,

Count II, is affirmed as modified, and counsel’s motion to withdraw from representation

of Dalrymple is granted. See Cummins v. State, 646 S.W.3d 605 (Tex. App.—Waco 2022,

pet. ref’d).

TOM GRAY Chief Justice

Before Chief Justice Gray, Justice Smith, and Justice Wright 2 Affirmed; affirmed as modified Opinion delivered and filed November 16, 2022 Do not publish [CRPM]

1 The bill of cost should be modified to reflect the cost due in the judgment as it has been modified by this opinion.

2 The Honorable Jim R. Wright, Senior Chief Justice (Retired) of the Eleventh Court of Appeals, sitting by assignment of the Chief Justice of the Texas Supreme Court. See TEX. GOV'T CODE §§ 74.003, 75.002, 75.003. Dalrymple v. State Page 3