Kevin E. Bromley v. State

• Court: Court of Appeals of Texas
• Decided: December 31, 2018
• Docket: 02-17-00252-CR
• Status: Published

Opinion

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

No. 02-17-00252-CR ___________________________

KEVIN E. BROMLEY, Appellant

V.

THE STATE OF TEXAS

On Appeal from Criminal District Court No. 3 Tarrant County, Texas Trial Court No. 1469526D

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

A jury found Appellant Kevin E. Bromley guilty of aggravated assault with a

deadly weapon, assessed his punishment at six years’ confinement, and recommended

that his sentence be suspended and that he be placed on community supervision. See

Tex. Penal Code Ann. § 22.02(a)(2) (West 2011). In accordance with the jury’s

recommendation, the trial court sentenced Bromley to six years’ confinement,

suspended imposition of the sentence, and placed him on community supervision for

six years.

Bromley’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

Bromley 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 Bromley’s review of the appellate record. 436 S.W.3d

313, 319 (Tex. Crim. App. 2014). Bromley had the opportunity to file a pro se

response to the Anders brief and has done so. The State submitted a letter stating that

it would not be filing a brief.

2 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).

We have carefully reviewed the record, counsel’s brief, and Bromley’s pro se

response. The record shows that Bromley was represented by an appointed attorney

at trial. As one of the conditions of Bromley’s community supervision, the trial court

ordered him to pay “ATTORNEY FEES in the amount of $ to be determined.” The

written judgment in the record shows that the trial court ordered Bromley to pay

$6,450 in attorney’s fees. 1 However, there is no evidence in the record indicating a

change in Bromley’s status as an indigent defendant.

For purposes of assessing attorney’s fees, once an accused is found to be

indigent, he is presumed to remain so throughout the proceedings absent proof of a

material change in his circumstances. See Tex. Code Crim. Proc. Ann. art. 26.04(p)

(West Supp. 2018); Wiley v. State, 410 S.W.3d 313, 317 (Tex. Crim. App. 2013); Mayer

v. State, 309 S.W.3d 552, 557 (Tex. Crim. App. 2010).

1 On the judgment, the box is not checked beside “Attachment A, Order to Withdraw Funds, is incorporated into this judgment and made a part thereof,” and no such order appears in the appellate record. Our clerk’s office confirmed with the district clerk’s office that an order to withdraw funds was not prepared in this case.

3 Furthermore, the record must reflect some factual basis to support the

determination that the appellant was capable of paying all or some of his attorney’s

fees at the time of the judgment. See Tex. Code Crim. Proc. Ann. art. 26.05(g) (West

Supp. 2018); Wiley, 410 S.W.3d at 317 (“[I]n the absence of any indication in the

record that [an indigent defendant’s] financial status has in fact changed, the evidence

will not support an imposition of attorney fees.”). When the record does not contain

a factual basis to support imposition of attorney’s fees, the proper remedy is to delete

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

Because our review of the record reveals that there was never a finding by the

trial court that Bromley’s financial circumstances changed such that he was able to pay

all or a portion of his appointed attorney’s fees, we modify the trial court’s judgment

to delete the improperly-assessed appointed attorney’s fees. See Bray v. State, 179

S.W.3d 725, 726 (Tex. App.—Fort Worth 2005, no pet.) (holding that an appellate

court has the authority to reform a judgment in an Anders appeal and to affirm that

judgment as reformed); see also, e.g., Gonzalez v. State, No. 07-16-00012-CR, 2016 WL

1604375, at *1 (Tex. App.—Amarillo Apr. 19, 2016, no pet.) (mem. op., not

designated for publication) (holding that it was error for trial court to order indigent

appellant to pay attorney’s fees as a condition of community supervision and

modifying judgment to delete attorney’s fees); Tarver v. State, No. 02-13-00394-CR,

2014 WL 1510105, at *2 (Tex. App.—Fort Worth Apr. 17, 2014, no pet.) (mem. op.,

4 not designated by publication) (modifying judgment in Anders case to delete

assessment of attorney’s fees unsupported by record).

Except for this necessary modification to the trial court’s judgment, we agree

with counsel that this appeal is wholly frivolous and without merit; we find nothing

else 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 and affirm the trial court’s judgment as modified.

Per Curiam

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

Delivered: December 31, 2018