David Andrew Benson v. State

• Court: Court of Appeals of Texas
• Decided: February 28, 2019
• Docket: 02-18-00336-CR
• Status: Published

Opinion

In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________

No. 02-18-00336-CR ___________________________

DAVID ANDREW BENSON, Appellant

V.

THE STATE OF TEXAS

On Appeal from the 355th District Court Hood County, Texas Trial Court No. CR13843

Before Pittman, Kerr, and Birdwell, JJ. Per Curiam Memorandum Opinion MEMORANDUM OPINION

A jury convicted Appellant David Andrew Benson of continuous sexual abuse

of a child under fourteen years of age and assessed his punishment at life

imprisonment. See Tex. Penal Code Ann. § 21.02. The trial court sentenced him

accordingly. Appellant’s court-appointed appellate counsel has filed a motion to

withdraw as counsel and a brief in support of that motion. Counsel’s brief and

motion meet the requirements of Anders v. California by presenting a professional

evaluation of the record and demonstrating why there are no arguable grounds for

relief. 386 U.S. 738, 87 S. Ct. 1396 (1967); see In re Schulman, 252 S.W.3d 403, 406–12

(Tex. Crim. App. 2008) (orig. proceeding) (analyzing the effect of Anders). In his

pro se response to the Anders brief, Appellant challenges the sufficiency of the

evidence supporting his conviction; the State did not file a brief in response to the

Anders brief.

After an appellant’s court-appointed counsel files a motion to withdraw on the

ground that the appeal is frivolous and fulfills the requirements of Anders, this court

must independently examine the record to see if any arguable ground may be raised

on his behalf. See Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991). We

also consider the briefs and any pro se response. See Schulman, 252 S.W.3d at 408–09.

Only after we conduct our own examination to determine whether counsel has

correctly assessed the case may we grant his motion to withdraw. See Penson v. Ohio,

488 U.S. 75, 82–83, 109 S. Ct. 346, 351 (1988).

2 We have carefully reviewed counsel’s brief, the record, and Appellant’s

response to the Anders brief. In our independent review of the record, we discovered

that the bill of costs includes a capias warrant fee of $50. The statute governing fees

for services of peace officers provides that a defendant convicted of a felony shall pay

$50 for the executing or processing of an issued arrest warrant or capias. See Tex.

Code Crim. Proc. Ann. art. 102.011(a)(2). The probable-cause affidavit of the officer

who interviewed Appellant appears in the record, but the record does not indicate

that an arrest warrant was issued or processed, nor does it contain a capias. Our

clerk’s office confirmed with the trial court clerk that Appellant’s arrest—on the same

day but after his interview with the officer ended—was warrantless. See Tex. Code

Crim. Proc. Ann. art. 14.03(a)(6). We therefore modify the trial court’s judgment, the

incorporated order to withdraw funds, and the bill of costs to delete $50 from the

total costs assessed, leaving total costs of $439. See Bray v. State, 179 S.W.3d 725, 726

(Tex. App.—Fort Worth 2005, no pet.) (holding that an appellate court has authority

to modify a judgment in an Anders appeal); see also Reed v. State, No. 02-17-00199-CR,

2018 WL 6844132, at *1–2 (Tex. App.—Fort Worth Dec. 31, 2018, no pet. h.) (mem.

op., not designated for publication); Barefield v. State, No. 02-14-00336-CR, 2016 WL

551890, at *1 (Tex. App.—Fort Worth Feb. 11, 2016, pet. ref’d) (mem. op., not

designated for publication) (deleting from judgment a $50 arrest fee that was not

supported by record).

3 Except for this improperly imposed fee, we agree with counsel that this appeal

is wholly frivolous and without merit; we find nothing in the record that arguably

might support an appeal. See Bledsoe v. State, 178 S.W.3d 824, 827–28 (Tex. Crim. App.

2005); see also Meza v. State, 206 S.W.3d 684, 685 n.6 (Tex. Crim. App. 2006).

Accordingly, we grant counsel’s motion to withdraw and affirm as modified the

trial court’s judgment and the order to withdraw funds incorporated therein.

Per Curiam

Do Not Publish Tex. R. App. P. 47.2(b)

Delivered: February 28, 2019