Crystal Rena Weber v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: February 23, 2023
• Docket: 01-22-00485-CR
• Status: Published

Opinion

Opinion issued February 23, 2023

In The Court of Appeals For The First District of Texas

NO. 01-22-00485-CR ____________

CRYSTAL RENA WEBER, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 149th District Court Brazoria County, Texas Trial Court Cause No. 92699-CR

MEMORANDUM OPINION Appellant Crystal Rena Weber pleaded guilty to the offense of possession of a

controlled substance weighing less than one gram. See TEX. HEALTH & SAFETY CODE

§ 481.115(b). The trial court deferred an adjudication of guilt and placed Weber

under community supervision for two years. The State then filed a motion to revoke

deferred adjudication.

At the hearing on the State’s motion to revoke deferred adjudication, Weber

pleaded “true” to all the allegations in the State’s motion. The trial court found the

allegations “true,” adjudicated appellant’s guilt, and assessed punishment at 15

months’ confinement. This appeal followed.

On appeal, Weber’s appointed counsel filed a motion to withdraw with a brief

stating that the record presents no reversible error, that the appeal is without merit,

and is frivolous. See Anders v. California, 386 U.S. 738 (1967).

Counsel’s brief meets the Anders requirements by presenting a professional

evaluation of the record and supplying us with references to the record and legal

authority. 386 U.S. at 744; see also High v. State, 573 S.W.2d 807, 812 (Tex. Crim.

App. 1978). Counsel indicates that he has thoroughly reviewed the record and is

unable to advance any grounds of error that warrant reversal. See Anders, 386 U.S.

at 744; Mitchell v. State, 193 S.W.3d 153, 155 (Tex. App.—Houston [1st Dist.] 2006,

no pet.).

2 Counsel has advised Weber of her right to access the record and has provided

her with a form motion for access to the record. Counsel further advised Weber of

her right to file a pro se response to the Anders brief. Weber has done neither.

We have independently reviewed the entire record in this appeal. Based on

that review, we conclude that no error to reverse Weber’s conviction exists in the

record, that there are no arguable grounds for review, and that the appeal from her

conviction is frivolous.1 See Anders, 386 U.S. at 744 (emphasizing that reviewing

court—and not counsel—determines, after full examination of proceedings, whether

appeal is wholly frivolous).2

Weber’s counsel further contends that because Weber is indigent, the

assessment of $900 in attorney’s fees in the final judgment should be deleted. We

agree.

A trial court’s authority to order a defendant to repay the cost of court-

appointed legal counsel is expressly conditioned on the court determining that the

defendant has the financial resources and ability to pay. TEX. CODE CRIM. PROC. art.

1 We note that an appellant may challenge a holding that there are no arguable grounds for appeal by filing a petition for discretionary review in the Texas Court of Criminal Appeals. See Bledsoe v. State, 178 S.W.3d 824, 827 & n.6 (Tex. Crim. App. 2005). 2 See also Garner v. State, 300 S.W.3d 763, 767 (Tex. Crim. App. 2009) (reviewing court must determine whether arguable grounds for review exist); Bledsoe, 178 S.W.3d at 826–27 (same); Mitchell, 193 S.W.3d at 155 (reviewing court determines whether arguable grounds exist by reviewing entire record). 3 26.05(g); see Cates v. State, 402 S.W.3d 250, 251 (Tex. Crim. App. 2013) (observing

that “the 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]” (quoting Mayer v. State, 309 S.W.3d

552, 556 (Tex. Crim. App. 2010))).

Here, the record shows that the trial court found Weber to be indigent and

appointed counsel to represent her before she was placed on deferred-adjudication

probation. The trial court again found Weber to be indigent when the State moved to

revoke her deferred-adjudication probation, and again on appeal.

Because the trial court found Weber to be indigent, she is presumed to remain

indigent absent proof of a material change in her circumstances. See TEX. CODE

CRIM. PROC. art. 26.04(p); Mayer, 309 S.W.3d at 557. Nothing in the record indicates

a change in Weber’s financial circumstances. The record also contains no

determination by the trial court that Weber could pay $900 in attorney’s fees—and

we find no factual basis in the record to support such a determination.

As a result, we conclude that the trial court erroneously assessed attorney’s

fees against Weber for court-appointed counsel. We therefore modify the judgment

to delete the $900 fee for “Attorney Fees.” See Byrd v. State, No. 01–12–00930–CR,

2013 WL 5947975, at *2 (Tex. App.—Houston [1st Dist.] Nov. 5, 2013, no pet.)

4 (mem. op., not designated for publication) (modifying judgment by deleting

appointed attorney’s fees and affirming judgment as modified in Anders appeal).3

Weber’s counsel additionally maintains that we should delete a $60

“reimbursement fee” that is included in the judgment. Article 102.011 of the Texas

Code of Criminal Procedure permits a $50 fee for “executing or processing an issued

arrest warrant, capias, or capias pro fine[.]” TEX. CODE CRIM. PROC. art.

102.011(a)(2). In reviewing reimbursement costs, “the standard for upholding the

imposition of a cost under 102.011 is whether there is a basis for that cost, and not

whether sufficient evidence supports its imposition. Martinez v. State, 510 S.W.3d

206, 209 (Tex. App.—Houston [1st Dist.] 2016, no pet.).

The record shows that a capias was issued on January 27, 2022. Thus, there is

a basis in the record for $50 of the $60 fine. However, we are unable to determine

from the record whether there is a basis for the remaining $10 of the “reimbursement

costs.” As a result, we further modify the judgment to reduce the “reimbursement

costs” to $50.

3 See also Navarro v. State, No. 01–12–00415–CR, 2013 WL 2456799, at *2 (Tex. App.—Houston [1st Dist.] June 6, 2013, no pet.) (mem. op., not designated for publication) (same); see also Hubbard v. State, No. 02–13–00300–CR, 2014 WL 1767475, at *1 (Tex. App.—Fort Worth May 1, 2014, no pet.) (mem. op., not designated for publication) (“We have the authority to reform a judgment in an Anders appeal and to affirm that judgment as reformed.”). 5 As so modified, we affirm the trial court’s judgment and grant counsel’s

motion to withdraw. Attorney Perry Stevens must immediately send Weber the

required notice and file a copy of the notice with the Clerk of this Court. See TEX. R.

APP. P. 6.5(c). We dismiss any pending motions as moot.

PER CURIAM

Panel consists of Chief Justice Adams and Justices Kelly and Goodman.

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