Lemyel Odell Price v. State

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-13-00403-CR

LEMYEL ODELL PRICE, Appellant v.

THE STATE OF TEXAS, Appellee

From the 66th District Court Hill County, Texas Trial Court No. 36,923

MEMORANDUM OPINION

Lemyel Odell Price, Jr. pled guilty to the offense of burglary of a habitation and

was placed on deferred adjudication community supervision. TEX. PENAL CODE ANN. §

30.02 (West 2011). Two years later, Price was adjudicated guilty and sentenced to eight

years in prison.

Price’s appellate attorney filed an Anders brief in this appeal. See Anders v.

California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967). Price was informed of his

right to submit a brief or other response on his own behalf and how to obtain a copy of the appellate record. Price did not submit a brief or response. Counsel asserts in the

Anders brief that after diligently and carefully examining the record and after diligently

researching relevant case law and statutes, he has found that no non-frivolous issues

exist.

In reviewing an Anders appeal, we must, "after a full examination of all the

proceedings, ... decide whether the case is wholly frivolous." See Anders, 386 U.S. at 744;

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).

Arguments are frivolous when they "cannot conceivably persuade the court." Id. at 436.

An appeal is not wholly frivolous when it is based on "arguable grounds." Stafford,

813S.W.2d at 511.

Despite concluding that the appeal is frivolous, counsel presented the issue that

the trial court erred in assessing transport fees against Price because they were for

transport pursuant to a bench warrant and that such fees are not part of statutory court

costs defendants must pay whether indigent or not. See TEX. CODE CRIM. PROC. ANN.

art. 102.001(b) (West 2006) (listing only certain fees for services of peace officers to be

paid by a defendant). The State concedes error. Notwithstanding it is otherwise

presented as an Anders brief and, moreover, we have performed the remainder of the

normal due process requirements, both substantive and procedural, in Anders cases, we

Price v. State Page 2 will consider this as a brief on the merits specifically as it relates to the issue of the

appeal of erroneously assessed costs in criminal cases. See Hines v. State, Nos. 10-13-

00286-CR &10-13-00292-CR, 2014 Tex. App. LEXIS 5768, *4 (Tex. App.—Waco May 29,

2014, no pet.) (not designated for publication).

The trial court erred in assessing transport fees for the bench warrant against

Price because the fee was not authorized by the Code of Criminal Procedure. See TEX.

CODE CRIM. PROC. ANN. art. 102.001(b) (West 2006). Accordingly, we modify the trial

court’s judgment to delete the inclusion of $163.17 as transport fees owed by Price in the

judgment. Costs as modified will be $314.00.

As modified, we affirm the trial court’s judgment and dismiss counsel’s motion

to withdraw as moot. See id. *4 n. 2.

TOM GRAY Chief Justice

Before Chief Justice Gray, Justice Davis, and Justice Scoggins Affirmed as modified Opinion delivered and filed September 18, 2014 Do not publish [CR25]

Price v. State Page 3