David Louie Hearn v. State

Opinion

NO. 07-12-00324-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

DECEMBER 28, 2012

JOEL DUANE CORDERO, APPELLANT

v.

THE STATE OF TEXAS, APPELLEE

FROM THE 108TH DISTRICT COURT OF POTTER COUNTY;

NO. 54,639-E; HONORABLE DOUGLAS WOODBURN, JUDGE

Before CAMPBELL and HANCOCK and PIRTLE, JJ.

MEMORANDUM OPINION

Appellant, Joel Duane Cordero, entered a plea of guilty, pursuant to a plea

bargain, to the offense of aggravated sexual assault of a child. 1 Pursuant to the plea

agreement, appellant was not adjudicated guilty, but was placed on community

supervision for a period of ten years. Subsequently, the State filed a motion to

adjudicate appellant guilty. Appellant pleaded true to the allegations contained in the

State’s motion and appellant was sentenced to confinement in the Institutional Division

1 See TEX. PENAL CODE ANN. § 22.021(a)(1)(B) (West Supp. 2012). of the Texas Department of Criminal Justice for 15 years. Appellant gave notice of

appeal. We will modify and affirm the judgment of the trial court.

Appellant’s attorney has filed an Anders brief and a motion to withdraw. Anders

v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed. 2d 498 (1967). In support of his

motion to withdraw, counsel certifies that he has diligently reviewed the record, and in

his opinion, the record reflects no reversible error upon which an appeal can be

predicated. Id. at 744–45. In compliance with High v. State, 573 S.W.2d 807, 813

(Tex.Crim.App. 1978), counsel has candidly discussed why, under the controlling

authorities, there is no error in the trial court’s judgment. Additionally, counsel has

certified that he has provided appellant a copy of the Anders brief and motion to

withdraw, and appropriately advised appellant of his right to file a pro se response in

this matter. Stafford v. State, 813 S.W.2d 503, 510 (Tex.Crim.App. 1991). The Court

has also advised appellant of his right to file a pro se response. Appellant has not filed

a response. By his Anders brief, counsel reviewed all grounds that could possibly

support an appeal, but concludes the appeal is frivolous. We have reviewed these

grounds and made an independent review of the entire record to determine whether

there are any arguable grounds which might support an appeal. See Penson v. Ohio,

488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988); Bledsoe v. State, 178 S.W.3d 824

(Tex.Crim.App. 2005). We have found no such arguable grounds and agree with

counsel that the appeal is frivolous.

We note the trial court’s judgment contains an order that appellant repay

attorney’s fees “as per the attached bill of costs.” The bill of costs reflects total

2 attorney’s fees of $5,788.72. However, the record demonstrates that appellant has

been considered indigent throughout these proceedings, and there is no other evidence

or determination by the trial court that the appellant has the ability to pay such fees.

TEX. CODE CRIM. PROC. ANN. art. 26.05(g) (West Supp. 2012). Accordingly, we modify

the trial court’s judgment by deleting the language ordering appellant to repay attorney’s

fees in the amount of $5,788.72. See Mayer v. State, 309 S.W.3d 552, 553

(Tex.Crim.App. 2010).

Accordingly, counsel’s motion to withdraw is hereby granted, and the trial court’s

judgment is affirmed as modified. 2

Mackey K. Hancock Justice

Do not publish.

2 Counsel shall, within five days after this opinion is handed down, send his client a copy of the opinion and judgment, along with notification of appellant=s right to file a pro se petition for discretionary review. See TEX. R. APP. P. 48.4.