Nathaniel Bradley v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: March 23, 2023
• Docket: 02-22-00232-CR
• Status: Published

Opinion

In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________

No. 02-22-00232-CR ___________________________

NATHANIEL BRADLEY, Appellant

V.

THE STATE OF TEXAS

On Appeal from the 16th District Court Denton County, Texas Trial Court No. F19-2488-16

Before Bassel, Womack, and Wallach, JJ. Memorandum Opinion by Justice Womack MEMORANDUM OPINION

Appellant Nathaniel Bradley, pursuant to a plea bargain, pled guilty to the

felony offense of burglary of a habitation, see Tex. Penal Code Ann. § 30.02, and was

placed on eight years’ deferred adjudication community supervision. In June 2022,

the State filed a motion to proceed with adjudication of guilt in which it alleged that

Bradley had committed numerous violations of the terms of his community

supervision. At the revocation hearing, Bradley pled “true” to violating the terms of

his community supervision,1 and the trial court adjudicated him guilty. During the

punishment phase of the hearing, the State called one witness—Bradley’s parole

officer—and Bradley called two witnesses—the mother of Bradley’s children and

Bradley himself. After considering the witnesses’ testimony, the presentence

investigation report, and the contents of the court’s file, the trial court sentenced

Bradley to eight years’ incarceration. This appeal followed.

On appeal, Bradley’s court-appointed appellate counsel has filed a motion to

withdraw as counsel and a brief reflecting that counsel has determined, after

examining the appellate record, that no arguable grounds for appeal exist. See Anders

v. California, 386 U.S. 738, 744–45, 87 S. Ct. 1396, 1400 (1967). Counsel’s brief and

motion meet the requirements of Anders, which requires presenting a professional

1 At the revocation hearing, the State abandoned the first three alleged violations set forth in its motion to proceed with adjudication of guilt. Bradley pled “true” to the remaining fourteen alleged violations.

2 evaluation of the entire record in the case demonstrating why there are no arguable

grounds for relief. Id., 87 S. Ct. at 1400. We have independently examined the

record, as is our duty upon the filing of an Anders brief. See Stafford v. State,

813 S.W.2d 503, 511 (Tex. Crim. App. 1991); see also Penson v. Ohio, 488 U.S. 75, 82–83,

109 S. Ct. 346, 351 (1988). Although provided the opportunity to seek a copy of the

appellate record and file a pro se response, Bradley declined to do so. Likewise, the

State did not file a response to the Anders brief.

After carefully reviewing the record and counsel’s brief, we have determined

that the $500 fine reflected in the judgment should be deleted. As counsel’s brief

correctly points out, the trial court’s oral pronouncement at the revocation hearing

controls. See Taylor v. State, 131 S.W.3d 497, 500–02 (Tex. Crim. App. 2004). Because

the trial court did not orally assess a fine as part of Bradley’s sentence when

adjudicating guilt at the revocation hearing, we modify the judgment to delete the

$500 fine. See id. at 502.

Similarly, we have determined that the $15 “time payment fee” reflected in the

bill of costs is premature and should likewise be deleted. See Tex. Code Crim. Proc.

Ann. art. 102.030(a). The Court of Criminal Appeals recently held that “the time

payment fee was designed to be triggered by the finality of the judgment” and that

“[t]he pendency of an appeal stops the clock for purposes of the time payment fee.”

Dulin v. State, 620 S.W.3d 129, 133 (Tex. Crim. App. 2021). Because Bradley perfected

his appeal prior to the thirty-first day following the entry of the judgment, the

3 assessment of the time payment fee was premature.2 See Guevara v. State,

No. 02-21-00069-CR, 2022 WL 1042919, at *4 (Tex. App.—Fort Worth Apr. 7, 2022,

no pet.) (mem. op., not designated for publication). Thus, we strike the time payment

fee in its entirety, without prejudice to its being assessed later if, more than 30 days

after the issuance of the appellate mandate, Bradley has failed to completely pay any

fine, court costs, or restitution that he owes. See Dulin, 620 S.W.3d at 133.

Except for the modifications to the judgment discussed above, we agree with

counsel that this appeal is wholly frivolous and without merit. Our independent

review of the record reveals nothing further that might arguably support the appeal.

See Bledsoe v. State, 178 S.W.3d 824, 827–28 (Tex. Crim. App. 2005); see also Meza v.

State, 206 S.W.3d 684, 685 n.6 (Tex. Crim. App. 2006). Accordingly, we grant

counsel’s motion to withdraw, modify the trial court’s judgment to remove the $500

fine, strike the $15 time payment fee from the bill of costs (without prejudice to its

being assessed later), and affirm the judgment as modified. See Tex. R. App.

P. 43.2(b); Bray v. State, 179 S.W.3d 725, 729 (Tex. App.—Fort Worth 2005, no pet.).

2 To the extent that the time payment fee was levied because Bradley failed to timely pay certain fines, fees, or other court costs assessed in the order deferring adjudication, this was improper because such an order is not a “judgment.” See Turner v. State, No. 05-19-01493-CR, 2021 WL 3083501, at *2 (Tex. App.—Dallas July 21, 2021, no pet.) (mem. op. on remand, not designated for publication); see also Tex. Code Crim. Proc. Ann. art. 102.030(a) (providing that a person must pay a time payment fee if he “pays any part of a fine [or] court costs . . . on or after the 31st day after the date on which a judgment is entered assessing the fine [or] court costs” (emphasis added)).

4 /s/ Dana Womack

Dana Womack Justice

Do Not Publish Tex. R. App. P. 47.2(b)

Delivered: March 23, 2023