Moses C. Lee v. State

• Court: Court of Appeals of Texas
• Decided: December 31, 2019
• Docket: 10-18-00334-CR
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-18-00334-CR

MOSES C. LEE, Appellant v.

THE STATE OF TEXAS, Appellee

From the 54th District Court McLennan County, Texas Trial Court No. 2017-549-C2

MEMORANDUM OPINION

Appellant Moses C. Lee was found guilty by a jury of the offense of assault family

violence by occlusion. Lee entered a plea of “true” to an enhancement allegation. The

jury assessed Lee’s punishment at eighteen years’ incarceration. Lee appeals his

conviction and sentence. We affirm the trial court’s judgment as modified.

I. Anders Brief

Pursuant to Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1396, 1400, 18 L. Ed. 2d

493 (1967), appellant’s court-appointed appellate counsel has filed a brief and a motion to withdraw with this Court, stating that his review of the record yielded no reversible

error upon which an appeal can be predicated. Counsel’s brief meets the requirements

of Anders as it presents a professional evaluation demonstrating why there are no

arguable grounds to advance on appeal. See In re Schulman, 252 S.W.3d 403, 407 n.9 (Tex.

Crim. App. 2008) (“In Texas, an Anders brief need not specifically advance ‘arguable’

points of error if counsel finds none, but it must provide record references to the facts

and procedural history and set out pertinent legal authorities.”) (citing Hawkins v. State,

112 S.W.3d 340, 343-44 (Tex. App.—Corpus Christi 2003, no pet.)); Stafford v. State, 813

S.W.2d 503, 510 n.3 (Tex. Crim. App. 1991) (en banc).

In compliance with High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel Op.]

1978), appellant’s counsel has carefully discussed why, under controlling authority, there

are no reversible errors in the trial court’s judgment. Counsel has informed this Court

that he has: (1) examined the record and found no arguable grounds to advance on

appeal; (2) served a copy of the brief and counsel’s motion to withdraw on appellant; and

(3) provided appellant with a copy of the record and informed him of his right to file a

pro se response.1 See Anders, 386 U.S. at 744, 87 S. Ct. at 1400; Stafford, 813 S.W.2d at 510

n.3; see also In re Schulman, 252 S.W.3d at 409 n.23. Appellant has not filed a pro se response

in this matter.

1 Given counsel’s assertion that he has “furnished Appellant with a copy of the Anders brief and the appellate record . . . and . . . informed Appellant of the right to file a pro se brief or response” and the fact that appellant has not filed a request for the appellate record, we have fair assurance that appellate counsel has complied with the Court of Criminal Appeals’s decision in Kelly v. State. See 436 S.W.3d 313, 319-20 (Tex. Crim. App. 2014).

Lee v. State Page 2 II. Independent Review

Upon receiving an Anders brief, we must conduct a full examination of all the

proceedings to determine whether the case is wholly frivolous. Penson v. Ohio, 488 U.S.

75, 80, 109 S. Ct. 346, 349-50, 102 L. Ed. 2d 300 (1988). We have reviewed the entire record

and counsel’s brief and have not found reversible error in this matter. See Bledsoe v. State,

178 S.W.3d 824, 827-28 (Tex. Crim. App. 2005) (“Due to the nature of Anders briefs, by

indicating in the opinion that it considered the issues raised in the briefs and reviewed

the record for reversible error but found none, the court of appeals met the requirement

of Texas Rule of Appellate Procedure 47.1.”); Stafford, 813 S.W.2d at 509. However, there

is non-reversible error in the judgment regarding court costs.

In his Anders brief, appellate counsel argues that we should modify the judgment

to delete $22.50 of the court costs assessed against appellant because section 133.103(b)

and (d) of the Local Government Code is unconstitutional. In Simmons v. State, this Court

held that section 133.103(b) and (d) is facially unconstitutional because the collected funds

are sent into a general-revenue fund and are not sufficiently related to the criminal-justice

system or a legitimate criminal-justice purpose. No. 10-18-00269-CR, ___ S.W.3d ___,

2019 Tex. App. LEXIS ____ * __ (Tex. App.—Waco Nov. 27, 2019, no pet. h.) (citing Johnson

v. State, 573 S.W.3d 328, 340 (Tex. App.—Houston [14th Dist.] 2019, pet. filed)). In accord

Dulin v. State, 583 S.W.3d 351, 354 (Tex. App.—Austin, pet. filed); Kremplewski v. State,

No. 01-19-00033-CR, ___ S.W.3d. ___, 2019 Tex. App. LEXIS 6919, at **5-8 (Tex. App.—

Houston [1st Dist.] Aug. 8, 2019, pet. filed); King v. State, No. 11-17-00179-CR, 2019 Tex.

Lee v. State Page 3 App. LEXIS 5902, at **13-14 (Tex. App.—Eastland July 11, 2019, pet. filed) (mem. op., not

designated for publication)). Based on our precedent, abatement to the trial court for the

appointment of new counsel is not required. See Ferguson v. State, 435 S.W.3d 291, 293-94

(Tex. App.—Waco 2014, pet. dism’d). Because this error does not impact the

determination of guilt or punishment and, therefore, does not result in a reversal of either

judgment, we may modify the judgment to correct the erroneous assessment of $22.50 in

court costs. Id. Accordingly, we modify the judgment to delete $22.50 from the court

costs imposed and affirm the trial court’s judgment as modified.

III. Motion to Withdraw

In accordance with Anders, appellant’s attorney has asked this Court for

permission to withdraw as counsel in this case. See Anders, 386 U.S. at 744, 87 S. Ct. at

1400; see also In re Schulman, 252 S.W.3d at 408 n.17 (citing Jeffery v. State, 903 S.W.2d 776,

779-80 (Tex. App.—Dallas 1995, no pet.) (“If an attorney believes the appeal is frivolous,

he must withdraw from representing the appellant. To withdraw from representation,

the appointed attorney must file a motion to withdraw accompanied by a brief showing

the appellate court that the appeal is frivolous.”) (citations omitted)). We grant counsel’s

motion to withdraw. Notwithstanding counsel’s discharge, within five days of the date

of this Court’s opinion, counsel is ordered to send a copy of this opinion and this Court’s

judgment to appellant and to advise him of his right to file a petition for discretionary

Lee v. State Page 4 review.2 See TEX. R. APP. P. 48.4; see also In re Schulman, 252 S.W.3d at 412 n.35; Ex parte

Owens, 206 S.W.3d 670, 673 (Tex. Crim. App. 2006).

REX D. DAVIS Justice

Before Chief Justice Gray, Justice Davis, and Justice Neill Affirmed Opinion delivered and filed December 31, 2019 Do not publish [CR25]

2 No substitute counsel will be appointed. Should appellant wish to seek further review of this case by the Texas Court of Criminal Appeals, he must either retain an attorney to file a petition for discretionary review or must file a pro se petition for discretionary review. Any petition for discretionary review must be filed within thirty days from the date of this opinion or the last timely motion for rehearing or timely motion for en banc reconsideration was overruled by this Court. See TEX. R. APP. P. 68.2. Any petition and all copies of the petition for discretionary review must be filed with the Clerk of the Court of Criminal Appeals. See id. at R. 68.3. Any petition for discretionary review should comply with the requirements of rule 68.4 of the Texas Rules of Appellate Procedure. See id. at R. 68.4; see also In re Schulman, 252 S.W.3d at 409 n.22.

Lee v. State Page 5