Kieera Denice Evans v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: May 11, 2023
• Docket: 06-22-00174-CR
• Status: Published

Opinion

In the Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06-22-00174-CR

KIEERA DENICE EVANS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 6th District Court Red River County, Texas Trial Court No. CR03257

Before Stevens, C.J., van Cleef and Rambin, JJ. Memorandum Opinion by Justice van Cleef MEMORANDUM OPINION

On June 13, 2022, Kieera Denice Evans pled guilty, pursuant to a plea-bargain

agreement, to aggravated assault with a deadly weapon.1 The trial court deferred the

adjudication of her guilt; placed her on community supervision for ten years; ordered her to pay

court costs, attorney fees, and reimbursement; and imposed a fine of $1,000.00. Six weeks later,

the State filed a motion to revoke Evans’s community supervision and for a final adjudication of

her guilt. After a final hearing, in which Evans pled “true” to four of the State’s allegations, the

trial court found all of the State’s allegations to be true, revoked Evans’s community supervision,

adjudicated her guilt, sentenced her to sixteen years’ imprisonment, but did not impose any fine.

This appeal followed.

Evans’s appellate counsel filed a brief that outlined the procedural history of the case,

provided a detailed summary of the evidence elicited during the trial court proceedings, and

stated that counsel found no meritorious issues to raise on appeal. Counsel provided a

professional evaluation of the record and demonstrated why there are no arguable grounds to be

advanced, as required by law. See Anders v. California, 386 U.S. 738, 743–44 (1967); In re

Schulman, 252 S.W.3d 403, 406 (Tex. Crim. App. 2008) (orig. proceeding); Stafford v. State,

813 S.W.2d 503, 509–10 (Tex. Crim. App. 1991); High v. State, 573 S.W.2d 807, 812–13 (Tex.

Crim. App. [Panel Op.] 1978).

1 See TEX. PENAL CODE ANN. § 22.02(a)(2). 2 Evans’s counsel filed a motion with this Court seeking to withdraw as counsel in this

appeal and provided Evans with a copy of the brief and the motion to withdraw. Her counsel

also informed her of her right to review the record and to file a pro se response and provided

Evans with a copy of the appellate record. On March 9, 2023, we notified Evans that her pro se

response was due on or before April 10, 2023. Also, by letter dated April 19, 2023, we notified

Evans that the case would be submitted on briefs on May 10, 2023. Evans did not file a pro se

response.

We reviewed the entire appellate record and independently determined that no reversible

error exists. See Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim. App. 2005). “However,

appellate courts are authorized to reform judgments and affirm as modified in Anders cases

involving non-reversible error.” Mitchell v. State, 653 S.W.3d 295, 297 (Tex. App.—Texarkana

2022, no pet.) (comprehensively discussing appellate cases that have modified judgments in

Anders cases). We also have authority to modify a certified bill of costs.2 See id. at 298; Haley

v. State, No. 06-22-00086-CR, 2023 WL 141021, at *3 (Tex. App.—Texarkana Jan. 10, 2023, no

pet.) (mem. op., not designated for publication).

In this case, the certified bill of costs included an entry of $1,032.00 for “CRIMINAL

FINES” and an entry of $25.00 for “TIME PAY.” The order of deferred adjudication imposed a

fine of $1,000.00. However, “when an accused receives deferred adjudication, no sentence is

imposed. Then, when guilt is adjudicated, the order adjudicating guilt sets aside the order

2 “Court costs, as reflected in a certified bill of costs, need neither be orally pronounced nor incorporated by reference in the judgment to be effective.” Armstrong v. State, 340 S.W.3d 759, 766 (Tex. Crim. App. 2011) (citing Weir v. State, 278 S.W.3d 364, 367 (Tex. Crim. App. 2009)). 3 deferring adjudication, including the previously imposed fine.” Taylor v. State, 131 S.W.3d 497,

502 (Tex. Crim. App. 2004). When the trial court adjudicated Evans’s guilt and imposed her

sentence, it did not orally pronounce a fine. Since the trial court did not orally assess a fine as

part of her sentence, we modify the certified bill of costs by deleting the entry of $1,032.00 for

“CRIMINAL FINES.” See id.

Also, the Texas Court of Criminal Appeals has concluded that a time payment fee like the

one imposed here “must indeed be struck for being prematurely assessed because a defendant’s

appeal suspends the duty to pay court costs and therefore suspends the running of the clock for

the purposes of the time payment fee.” Dulin v. State, 620 S.W.3d 129, 129 (Tex. Crim. App.

2021). Because appellate proceedings are still pending in this case, the assessment of the time

payment fee is premature. Id. Consequently, we delete the time payment fee “in [its] entirety,

without prejudice to [it] being assessed later if, more than 30 days after the issuance of the

appellate mandate, the defendant has failed to completely pay any fine, court costs, or

restitution” owed. Id. at 133. We further modify the certified bill of costs by deleting the entry

of $25.00 for “TIME PAY.”

4 In the Anders context, once we determine that the appeal is without merit, we must either

dismiss the appeal or affirm the trial court’s judgment. See Anders, 386 U.S. 738. Therefore, we

modify the certified bill of costs by deleting the entry of $1,032.00 for “CRIMINAL FINES” and

by deleting the entry of $25.00 for “TIME PAY.”

We affirm the trial court’s judgment.3

Charles van Cleef Justice

Date Submitted: May 10, 2023 Date Decided: May 11, 2023

Do Not Publish

3 Since we agree that this case presents no reversible error, we also, in accordance with Anders, grant counsel’s request to withdraw from further representation of appellant in this case. See Anders, 386 U.S. at 744. No substitute counsel will be appointed. Should appellant desire to seek further review of this case by the Texas Court of Criminal Appeals, appellant must either retain an attorney to file a petition for discretionary review or file a pro se petition for discretionary review. Any petition for discretionary review (1) must be filed within thirty days from either the date of this opinion or the date on which the last timely motion for rehearing was overruled by this Court, see TEX. R. APP. P. 68.2, (2) must be filed with the clerk of the Texas Court of Criminal Appeals, see TEX. R. APP. P. 68.3, and (3) should comply with the requirements of Rule 68.4 of the Texas Rules of Appellate Procedure, see TEX. R. APP. P. 68.4. 5