Larry Young v. State

• Court: Court of Appeals of Texas
• Decided: December 18, 2013
• Docket: 04-13-00097-CR
• Status: Published

Opinion

Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION No. 04-13-00096-CR No. 04-13-00097-CR

Larry YOUNG, Appellant

v. The State of TexasAppellee The STATE of Texas, Appellee

From the 25th Judicial District Court, Guadalupe County, Texas Trial Court Nos. 11-1768-CR & 11-1769-CR Honorable W.C. Kirkendall, Judge Presiding

Opinion by: Sandee Bryan Marion, Justice

Sitting: Sandee Bryan Marion, Justice Rebeca C. Martinez, Justice Luz Elena D. Chapa, Justice

Delivered and Filed: December 18, 2013

AFFIRMED; AFFIRMED AS MODIFIED; MOTION TO WITHDRAW GRANTED

In trial cause number 11-1768-CR, a jury found appellant guilty of aggravated sexual

assault of a five-year-old child, and assessed punishment at sixty years’ confinement. In trial cause

number 11-1769-CR, a jury found appellant guilty of aggravated sexual assault of a nine-month-

old child, and assessed punishment at sixty years’ confinement. The trial court ordered the

sentences to run concurrently. The judgment in trial cause number 11-1768-CR does not assess

any fees for court appointed counsel, but does award 587 days in jail time credit. The judgment 04-13-00096-CR; 04-13-00097-CR

in trial cause number 11-1769-CR assesses $5,090.00 in “court appointed attorney fee[s],” and

does not award any jail time credit.

Appellant’s court-appointed appellate attorney filed a brief containing a professional

evaluation of the record and demonstrating there are no arguable grounds to be advanced. Counsel

concludes the appeal is without merit. The brief meets the requirements of Anders v. California,

386 U.S. 738 (1967). Appellant was informed of his right to review the record and of his right to

file a pro se brief. Appellant did not file a pro se brief. The State waived its right to file a brief.

After reviewing the record and counsel’s brief, we agree the appeal is frivolous and without merit.

Accordingly, we affirm the trial court’s judgments, and we GRANT appellate counsel’s motion to

withdraw. 1 Nichols v. State, 954 S.W.2d 83, 86 (Tex. App.CSan Antonio 1997, no pet.); Bruns v.

State, 924 S.W.2d 176, 177 n.1 (Tex. App.CSan Antonio 1996, no pet.).

However, although we affirm the trial court’s judgment in trial cause number 11-1769-CR,

we also conclude that with respect to the trial court’s award of court costs plus attorney’s fees, that

judgment should be modified. The record shows the trial court assessed attorney’s fees despite its

finding that appellant is indigent. 2 The Bill of Cost indicates the amount of attorney’s fees to be

assessed against appellant is $5,090.00. The evidence in the record does not support a finding that

appellant’s ability to pay attorney’s fees changed after the trial court first determined him to be

indigent. See TEX. CODE CRIM. PROC. ANN. arts. 26.04(p) (West Supp. 2013); Roberts v. State,

1 No substitute counsel will be appointed. See In re Schulman, 252 S.W.3d 403, 408 n.22 (Tex. Crim. App. 2008). Should appellant wish 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 must be filed within thirty days from the date of either this opinion or the last timely motion for rehearing that is overruled by this court. See TEX. R. APP. P. 68.2. Any petition for discretionary review must be filed with Texas Court of Criminal Appeals. See TEX. R. APP. P. 68.3(a). Any petition for discretionary review must comply with the requirements of Texas Rules of Appellate Procedure 68.4. 2 Appellant’s trial counsel was appointed because appellant was “too poor to employ counsel” for his defense. Appellate counsel also was appointed for the same reason.

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327 S.W.3d 880, 883-84 (Tex. App.—Beaumont 2010, no pet.). Therefore, we modify the

judgment in trial cause number 11-1769-CR to delete the assessment of attorney’s fees against

appellant. See Solomon v. State, 392 S.W.3d 309, 311 (Tex. App.—San Antonio 2012, no pet.)

(reforming judgment to decrease amount of assessed costs).

We also modify the judgment in trial cause number 11-1769-CR for a second reason.

Unlike the judgment in trial cause number 11-1768-CR, which awards 587 days of jail credit, the

judgment in trial cause number 11-1769-CR awards no jail credit. Appellant was not allowed

community supervision. With exceptions not applicable here, a judge is required to award a

defendant time credit toward his sentence for any time spent in jail from the time of his arrest until

his sentencing. Ex parte Walker, 150 S.W.3d 429, 431 (Tex. Crim. App. 2004); TEX. CODE CRIM.

PROC. ANN. art. 42.03 § 2(a) (West Supp. 2013). Here, the record establishes the indictments in

these cases were filed on September 2, 2011, writs to serve appellant were issued in these cases on

the same date, and appellant was arrested on the charges on June 17, 2011. During sentencing in

the consolidated cases, the trial court stated to appellant, “[y]ou will receive credit for the time you

spent in custody on these charges through today.” For these reasons, we conclude the trial court

should have awarded jail credit in both trial cause numbers. Therefore, we modify the judgment

in trial cause number 11-1769-CR to add 587 days jail credit.

We affirm the trial court’s judgment in trial cause number 11-1768-CR as is and affirm the

trial court’s judgment in trial cause number 11-1769-CR as modified.

Sandee Bryan Marion, Justice

Do not publish

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