Kris Martinez v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: September 22, 2021
• Docket: 04-21-00066-CR
• Status: Published

Opinion

Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION

No. 04-21-00066-CR

Kris MARTINEZ, Appellant

v.

The STATE of Texas, Appellee

From the 25th Judicial District Court, Guadalupe County, Texas Trial Court No. 17-0482-CR-C Honorable William D. Old III, Judge Presiding

Opinion by: Beth Watkins, Justice

Sitting: Luz Elena D. Chapa, Justice Beth Watkins, Justice Liza A. Rodriguez, Justice

Delivered and Filed: September 22, 2021

MOTION TO WITHDRAW GRANTED; AFFIRMED AS MODIFIED

In 2017, appellant Kris Martinez pled guilty to “assault family violence impeding

breath/circulation.” TEX. PENAL CODE ANN. § 22.01(a)(1), (b)(2)(B). Pursuant to the terms of a

plea agreement, the trial court deferred a finding of guilt and placed Martinez on community

supervision for eight years. In 2021, Martinez pled true to violations of fifteen terms of his

community supervision, and the trial court found the violations true. The trial court adjudicated

Martinez’s guilt and sentenced him to nine years in prison. TEX. PENAL CODE ANN. § 12.34(a).

Martinez appealed. 04-21-00066-CR

Martinez’s court-appointed attorney filed a brief containing a professional evaluation of

the record in accordance with Anders v. California, 386 U.S. 738 (1967). Counsel concludes the

appeal has no merit but argues that because Martinez is indigent, the judgment should be reformed

to delete the requirement that Martinez pay $600 in court-appointed attorney’s fees that were

assessed in 2021 and are reflected on the February 2, 2021 bill of costs. Counsel provided Martinez

with a copy of the brief and informed him of his right to review the record and file his own brief.

See Nichols v. State, 954 S.W.2d 83, 85–86 (Tex. App.—San Antonio 1997, no pet.); Bruns v.

State, 924 S.W.2d 176, 177 n.1 (Tex. App.—San Antonio 1996, no pet.). Martinez did not file a

pro se brief and the State filed a letter waiving its right to file a response brief.

After reviewing the record and briefs, we agree the appeal is frivolous and without merit.

However, because the record shows Martinez is indigent and does not indicate a material change

in his financial circumstances has occurred, we also agree we must modify the part of the judgment

assessing $600 in court-appointed attorney’s fees against Martinez. Cates v. State, 402 S.W.3d

250, 251 (Tex. Crim. App. 2013) (noting that, under Texas Code of Criminal Procedure art.

26.04(p), a defendant who is determined by the court to be indigent is presumed to remain so

absent a material change in the defendant’s financial circumstances); Wilmurth v. State, 419

S.W.3d 553, 554–55 (Tex. App.—San Antonio 2013, no pet.) (modifying judgment to delete

assessment of attorney’s fees when defendant is indigent). We therefore modify the judgment to

subtract $600 in court-appointed attorney’s fees assessed against Martinez, and we affirm the

judgment as modified. See TEX. R. APP. P. 43.2(b); Cates, 402 S.W.3d at 251–52; Wilmurth, 419

S.W.3d at 554–55. We grant appellate counsel’s motion to withdraw. See Nichols, 954 S.W.2d

at 86; Bruns, 924 S.W.2d at 177 n.1.

No substitute counsel will be appointed. Should Martinez wish to seek further review of

this case by the Texas Court of Criminal Appeals, Martinez must either retain an attorney to file a

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petition for discretionary review or Martinez must file a pro se petition for discretionary review.

Any petition for discretionary review must be filed within thirty days from the later of: (1) the date

of this opinion; or (2) the date the last timely motion for rehearing is overruled by this court. See

TEX. R. APP. P. 68.2. Any petition for discretionary review must be filed in the Texas Court of

Criminal Appeals. TEX. R. APP. P. 68.3. Any petition for discretionary review should comply with

the requirements of Rule 68.4 of the Texas Rules of Appellate Procedure. TEX. R. APP. P. 68.4.

Beth Watkins, Justice

DO NOT PUBLISH

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