Justin James Wilson v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: November 30, 2022
• Docket: 10-21-00163-CR
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-21-00163-CR

JUSTIN JAMES WILSON, Appellant v.

THE STATE OF TEXAS, Appellee

From the 220th District Court Bosque County, Texas Trial Court No. CR15639

MEMORANDUM OPINION

Justin James Wilson was convicted of obstruction or retaliation and sentenced to

five years in prison. See TEX. PENAL CODE § 36.06(c).

Wilson’s appointed counsel filed a motion to withdraw and a brief in support of

the motion asserting that he has diligently reviewed the appellate record and that, in his

opinion, the appeal is frivolous pursuant to the United States Supreme Court opinion in

Anders, but also presenting nonreversible error in the judgment pursuant to this Court’s

order in Allison. See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967); Allison v. State, 609 S.W.3d 624, 628 (Tex. App.—Waco 2020, order).

Counsel's brief evidences a professional evaluation of the record for error and

compliance with the other duties of appointed counsel. We conclude that counsel has

performed the duties required of appointed counsel. See Anders, 386 U.S. at 744; High v.

State, 573 S.W.2d 807, 812 (Tex. Crim. App. 1978); see also Kelly v. State, 436 S.W.3d 313,

319-320 (Tex. Crim. App. 2014); In re Schulman, 252 S.W.3d 403, 407 (Tex. Crim. App.

2008).

In reviewing the Anders portion of this appeal, we must, "after a full examination

of all the proceedings, ... decide whether the case is wholly frivolous." Anders, 386 U.S. at

744; see Penson v. Ohio, 488 U.S. 75, 80, 109 S. Ct. 346, 102 L. Ed. 2d 300 (1988); accord Stafford

v. State, 813 S.W.2d 503, 509-11 (Tex. Crim. App. 1991). An appeal is "wholly frivolous"

or "without merit" when it "lacks any basis in law or fact." McCoy v. Court of Appeals, 486

U.S. 429, 439 n. 10, 108 S. Ct. 1895, 100 L. Ed. 2d 440 (1988). After a review of the entire

record in this appeal, we have determined the appeal to be wholly frivolous. See Bledsoe

v. State, 178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005); Cummins v. State, 646 S.W.3d 605,

620-621(Tex. App.—Waco 2022, pet. ref'd).

As noted previously, despite finding no reversible error, counsel has presented

issues of nonreversible error, that being, court-appointed attorney’s fees, a $25.00 time

payment fee, and an additional threatened time payment fee. The State did not file a brief

in response to these alleged errors. See Cummins, 646 S.W.3d at 615 (“the State is expected

to file a response addressing the merits of the nonreversible error presented in the Allison

brief. See, e.g., Price [v. State], [No. 10-13-00403-CR,] 2014 Tex. App. LEXIS 10403, []*2

Wilson v. State Page 2 [(Tex. App.—Waco Sep. 18, 2014, no pet.)] (parenthetical omitted).”

We agree that these are nonreversible errors. There is no evidence that Wilson

could pay attorney’s fees. See Cates v. State, 402 S.W.3d 250, 252 (Tex. Crim. App. 2013).

Further, any time payment fee assessed or threatened is premature. See Dulin v. State, 620

S.W.3d 129, 133 (Tex. Crim. App. 2021).

Accordingly, the trial court’s judgment is modified to assess court cost in the

amount of $224.00. As modified, the trial court’s judgment is affirmed, 1 and counsel's

motion to withdraw from representation of Wilson is granted.

TOM GRAY Chief Justice

Before Chief Justice Gray, Justice Johnson, and Justice Smith Affirmed; motion granted Opinion delivered and filed November 30, 2022 Do not publish [CR25]

1 The bill of cost should be modified to reflect the cost due in the judgment as modified.

Wilson v. State Page 3