Joe Lee Clements v. State

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-18-00186-CR __________________

JOE LEE CLEMENTS, Appellant

V.

THE STATE OF TEXAS, Appellee

__________________________________________________________________

On Appeal from the 1A District Court Jasper County, Texas Trial Cause No. 13158JD __________________________________________________________________

MEMORANDUM OPINION

Pursuant to a plea bargain agreement, appellant Joe Lee Clements pleaded

guilty to possession of a controlled substance. The trial court found the evidence

sufficient to find Clements guilty, but deferred further proceedings, placed Clements

on community supervision for three years, and assessed a fine of $1000. The State

subsequently filed a motion to revoke Clements’s unadjudicated community

supervision. Clements pleaded “not true” to the alleged violations, and after 1 conducting an evidentiary hearing, the trial court found that Clements violated the

conditions of his community supervision, found Clements guilty of possession of a

controlled substance, and assessed punishment at two years of confinement in a state

jail facility.

Clements’s appellate counsel filed a brief that presents counsel’s professional

evaluation of the record and concludes the appeal is frivolous. See Anders v.

California, 386 U.S. 738 (1967); High v. State, 573 S.W.2d 807 (Tex. Crim. App.

1978). On February 13, 2019, we granted an extension of time for Clements to file

a pro se brief. We received no response from Clements. We reviewed the appellate

record, and we agree with counsel’s conclusion that no arguable issues support an

appeal. Therefore, we find it unnecessary to order appointment of new counsel to re-

brief the appeal. Cf. Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991).

However, during our review of the record, we observed that the trial court’s written

judgment includes an error that is capable of being reformed without the

involvement of the trial court. The trial court determined that Clements was indigent

but then rendered an award of attorney’s fees related to the motion to adjudicate guilt

even though there was no evidence before the court to show that Clements’s

indigency status had changed. Absent a change in a defendant’s status as an indigent,

a trial court is not authorized to impose an award of attorney’s fees in the judgment

2 against a defendant who remains indigent when the judgment is pronounced. See

Tex. Code Crim. Proc. Ann. arts. 26.04(p), 26.05(g) (West Supp. 2018); see also

Wiley v. State, 410 S.W.3d 313, 315, 317 (Tex. Crim. App. 2013); Roberts v. State,

327 S.W.3d 880, 884 (Tex. App.—Beaumont 2010, no pet.). We are authorized by

the Texas Rules of Appellate Procedure to render the judgment the trial court should

have rendered. See Tex. R. App. P. 43.2, 43.2. Because the record does not support

the award, we modify the judgment by deleting the award of $450 for attorney’s fees

related to the motion to adjudicate guilt (“MTAG”). We affirm the trial court’s

judgment as modified.1

AFFIRMED AS MODIFIED.

_________________________ STEVE McKEITHEN Chief Justice

Submitted on May 30, 2019 Opinion Delivered June 12, 2019 Do Not Publish

Before McKeithen, C.J., Kreger and Horton, JJ.

1 Clements may challenge our decision in this case by filing a petition for discretionary review. See Tex. R. App. P. 68. 3