Jeremy Brandon Wright v. State

• Court: Court of Appeals of Texas
• Decided: January 24, 2019
• Docket: 02-18-00352-CR
• Status: Published

Opinion

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

No. 02-18-00352-CR ___________________________

JEREMY BRANDON WRIGHT, Appellant

V.

THE STATE OF TEXAS

On Appeal from the 355th District Court Hood County, Texas Trial Court No. CR13942

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

Appellant Jeremy Brandon Wright appeals from the trial court’s judgment

revoking his community supervision, adjudicating his guilt for assault causing bodily

injury to a family member that was enhanced by a prior conviction, sentencing him to

ten years’ confinement, and ordering him to pay $1,239 in court costs. We modify the

judgment to delete $15 of the total costs assessed because the amount represents a

filing fee that is not a statutorily authorized cost, and we affirm the judgment as

modified.

A grand jury indicted Wright for the offense of assault causing bodily injury to

a family member with a prior conviction. See Tex. Penal Code Ann. § 22.01. Under

the terms of a plea-bargain agreement, Wright pleaded guilty to the offense, and the

trial court deferred adjudicating his guilt and placed him on community supervision

for seven years. The trial court also imposed a nonsuspended $1,500 fine, pursuant to

the terms of the plea-bargain agreement, and assessed court costs in the amount of

$1,134.

During the period of Wright’s community supervision, the State filed a first

amended motion to proceed with an adjudication of guilt. The State alleged that

Wright had violated three conditions of his community supervision: (A) sent

harassing electronic communications, (B) tested positive for marijuana, and (C) tested

positive for alcohol. Wright pleaded “true” to all three allegations. The trial court

heard evidence regarding the State’s violation allegations, found all three allegations to

2 be true, and adjudicated Wright guilty of the underlying offense. The trial court

revoked Wright’s community supervision and sentenced him to ten years’

confinement. The judgment adjudicating guilt orders Wright to pay $1,239 in court

costs.

Wright’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 demonstrating why there are no arguable grounds for relief. See 386 U.S. 738,

744, 87 S. Ct. 1396, 1400 (1967). In compliance with Kelly v. State, counsel notified

Wright of the motion to withdraw, provided him a copy of the brief, informed him of

his right to file a pro se response, informed him of his pro se right to seek

discretionary review should this court hold that the appeal is frivolous, and took

concrete measures to facilitate Wright’s review of the appellate record. 436 S.W.3d

313, 319 (Tex. Crim. App. 2014). This court afforded Wright the opportunity to file a

response on his own behalf, but he did not do so.

As the reviewing court, we must conduct an independent evaluation of the

record to determine whether counsel is correct in determining that the appeal is

frivolous. See Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991); Mays v.

State, 904 S.W.2d 920, 923 (Tex. App.—Fort Worth 1995, no pet.). Only then may we

grant counsel’s motion to withdraw. See Penson v. Ohio, 488 U.S. 75, 82–83, 109 S. Ct.

346, 351 (1988).

3 We have carefully reviewed counsel’s brief and the record. Our independent

review of the record revealed that the bill of costs includes a $15 filing fee for the

State’s motion to proceed to an adjudication of guilt. Although there is statutory

authority for requiring the opposing party to pay the entire amount of any filing fee

attributable to the State when the State prevails in a civil lawsuit,1 we have not found a

corresponding criminal statute. District clerks do not have discretion to impose any

fees not authorized by statute. See Johnson v. State, 423 S.W.3d 385, 389 (Tex. Crim.

App. 2014) (stating that “[o]nly statutorily authorized costs may be assessed against a

criminal defendant”). We therefore modify the judgment to delete $15 from the total

costs assessed, leaving total costs of $1,224. See Bray v. State, 179 S.W.3d 725, 726

(Tex. App.—Fort Worth 2005, no pet.); see also Diaz v. State, No. 10-16-00218-CR,

2017 WL 4413436, at *4 (Tex. App.—Waco Oct. 4, 2017, no pet.) (mem. op., not

designated for publication) (deleting criminal filing fee because there was no statutory

basis for the fee). We likewise modify the bill of costs and the order to withdraw

funds to delete $15, reducing the total court costs to $1,224.

Except for the error corrected by the modification described above, 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). Accordingly, we grant counsel’s motion to withdraw

1 See generally Tex. Civ. Prac. & Rem. Code Ann. § 8.02.

4 and affirm as modified the trial court’s judgment and the order to withdraw funds

incorporated into the judgment.

Per Curiam

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

Delivered: January 24, 2019