Dennis Stephen McCardle A/K/A Dennis Steve McCardle v. State

• Court: Court of Appeals of Texas
• Decided: March 11, 2014
• Docket: 07-13-00384-CR
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-13-00384-CR

DENNIS STEPHEN MCCARDLE A/K/A DENNIS STEVE MCCARDLE, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 355th District Court Hood County, Texas Trial Court No. CR12345, Honorable Ralph H. Walton, Jr., Presiding

March 11, 2014

MEMORANDUM OPINION Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

Dennis Stephen McCardle was convicted of felony theft by a jury. After pleading

true to two enhancements, he was sentenced to twenty years confinement and a fine of

$1,500.

Appellant’s counsel has filed a motion to withdraw, together with an Anders1

brief, wherein he certifies that, after diligently searching the record, he has concluded

that appellant’s appeal is without merit. Along with his brief, counsel filed a copy of a

1 Anders v. California, 386 U.S. 738, 744-45m 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). letter sent to appellant informing him of 1) counsel’s belief that there was no reversible

error and 2) appellant’s right to appeal pro se. Appellant acknowledged receipt of

counsel’s letter and twice moved for an extension of time to submit a pro se response.

He alleged that the trial court clerk would not provide him a copy of the record. We

granted the motions and instructed counsel to provide appellant with both the clerk’s

and reporter’s records. Appellant received the clerk’s record but represents that he

never received the reporter’s record. This court directed counsel to forward the entire

record to his client, and we received a copy of a letter from counsel indicating that was

done twice. Apparently the first attempt resulted in the mailing being returned; the

second did not. Appellant has not asked for another extension.

In compliance with the principles enunciated in Anders, appellate counsel

discussed potential areas of appeal including jury selection, objections to the evidence,

the sufficiency of the evidence, and the punishment assessed. However, he then

explained why the issues lack merit.

Appellant also raised issues related to 1) the sufficiency of the evidence to show

that he had the permanent intent to deprive the owner of property or to commit a crime,

and 2) the propriety of the entry of a judgment with an incorrect cause number. As to

the first, a Walmart loss prevention manager testified he observed appellant put a can of

automobile air conditioning refrigerant in the front of his pants and exit the store without

paying. A video corroborates some of the testimony. This evidence is sufficient to

permit a rational jury to find beyond a reasonable doubt that appellant unlawfully

appropriated property with the intent to deprive the owner. See TEX. PENAL CODE ANN. §

31.03(a) (West Supp. 2013). As to the second, the original judgment in the clerk’s

2 record shows the cause number to be 123345 although one of the threes has a slash

mark through it. A judgment nunc pro tunc was entered to correct the cause number

and to correct an incarceration date. The second judgment also shows the cause

number to be 123345 with one of the threes having a slash mark through it. We

believe both judgments show the correct cause number by the use of the slash mark.

However, we also note that an incorrect cause number may be forfeited by the failure to

object to the trial court. Haagensen v. State, 346 S.W.3d 758, 767 (Tex. App.—

Texarkana 2011, no pet.) (with respect to an incorrect cause number on a jury verdict).

Moreover, an appellate court has the power to reform an incorrect judgment, French v.

State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992), so it would not serve as a ground

for reversal.

We have also conducted our own review of the record to assess the accuracy of

appellate counsel’s conclusions and to uncover any arguable error pursuant to

Schulman v. State, 252 S.W.3d 403 (Tex. Crim. App. 2008) and Stafford v. State, 813

S.W.2d 508 (Tex. Crim. App. 1991). In doing so, we noticed that the judgment

assessed court costs in the amount of $1,974 against appellant. The bill of costs

indicates that the $1,974 sum is comprised of attorney’s fees in the amount of $1,650.

However, there is no evidence of record indicating a change in appellant’s status as an

indigent. Such is required before an indigent defendant may be assessed attorney’s

fees. TEX. CODE CRIM. PROC. ANN. art. 26.04(p) (West Supp. 2013); Mayer v. State, 309

S.W.3d 552, 557 (Tex. Crim. App. 2010). Because no objection is required to challenge

the sufficiency of the evidence regarding a defendant’s ability to pay those fees, Mayer

v. State, 309 S.W.3d at 556, the proper remedy is to delete attorney’s fees from the bill

3 of costs and any ensuing order permitting withdrawals from appellant’s inmate account.

Cates v. State, 402 S.W.3d 250, 251-52 (Tex. Crim. App. 2013).

Accordingly, the judgment is modified to reflect the accurate trial court cause

number of No. CR12345 and affirmed as modified. The bill of costs and the order to

withdraw funds from appellant’s inmate trust account are modified to delete the

requirement that appellant pay $1,650 in court-appointed attorney’s fees. That is, the

sum specified in the order of withdrawal is reduced by $1,650. The motion to withdraw

is granted.

Per Curiam

Do not publish.