Raymond Paul Schmidt v. State

• Court: Court of Appeals of Texas
• Decided: March 4, 2015
• Docket: 04-14-00272-CR
• Status: Published

Opinion

Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION No. 04-14-00272-CR

Raymond Paul SCHMIDT, Appellant

v. The /s The STATE of Texas, Appellee

From the 227th Judicial District Court, Bexar County, Texas Trial Court No. 2013CR6225 Honorable Andrew Carruthers, Judge Presiding

Opinion by: Jason Pulliam, Justice

Sitting: Patricia O. Alvarez, Justice Luz Elena D. Chapa, Justice Jason Pulliam, Justice

Delivered and Filed: March 4, 2015

AFFIRMED

BACKGROUND

Raymond Paul Schmidt pled no contest and was found guilty of one count of evading arrest

or detention with a vehicle, in violation of TEX. PENAL CODE ANN. § 38.04(b)(2)(A). After denial

of his motion to set aside the indictment, which challenged the constitutionality of the controlling

penal statute, Schmidt preserved the right to appeal the issue. The trial court sentenced Schmidt to

twenty-five years’ imprisonment. This court abated Schmidt’s appeal pending a ruling by the

Texas Court of Criminal Appeals in Ex Parte Jones, in which the applicant raised the same 04-14-00272-CR

constitutional challenge to the subject penal statute, specifically, the statute was void from

inception because it violated the “single-subject rule.” See Ex Parte Jones, 410 S.W.3d 349, 353

(Tex. App.—Houston [14th Dist.] 2013, pet. granted) (op. on reh’g). Subsequently, the Texas

Court of Criminal Appeals in Ex Parte Jones held the subject statute did not violate the single-

subject rule, and thus, was constitutional on that ground. See Ex Parte Jones, 440 S.W.3d 628,

633-34 (Tex. Crim. App. 2014).

ANALYSIS

Schmidt’s attorney filed a brief containing a professional evaluation of the record in

accordance with Anders v. California, 386 U.S. 738 (1967). In this brief, counsel concludes the

appeal has no merit. Counsel certifies he provided Schmidt 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.). Schmidt did not file a brief.

After reviewing the record, counsel’s brief and the Texas Court of Criminal Appeals

opinion in Ex Parte Jones, we agree the appeal is frivolous and without merit.

ASSESSMENT OF ATTORNEY FEES

“[A] ‘defendant who is determined by the court to be indigent is presumed to remain

indigent for the remainder of the proceedings in the case unless a material change in the defendant's

financial circumstances occurs.’” TEX. CODE CRIM. PROC. ANN. art. 26.04(p) (West Supp. 2013);

see Wiley v. State, 410 S.W.3d 313, 315 (Tex. Crim. App. 2013) (a defendant previously found

indigent is presumed to remain indigent); see also Cates v. State, 402 S.W.3d 250, 251 (Tex. Crim.

App. 2013).

The record shows Schmidt retained counsel in the trial court. The judgment of conviction

assesses “Court Cost” of “$259.00 PLUS ATTY FEES.” The bill of costs assesses attorney fees: -2- 04-14-00272-CR

“TBD”. Schmidt’s trial counsel filed the notice of appeal and the motion to withdraw as counsel

on April 17, 2014. In the motion to withdraw, counsel states Schmidt “is now indigent” and “is

without funds to pay for the record on appeal.” The trial court then appointed counsel to represent

Schmidt on appeal.

Because the record before this court does not contain an affidavit of indigency for

appointment of counsel before the trial, and Schmidt did retain trial counsel, we conclude Schmidt

was not found to be indigent at the trial level, and therefore, the record supports the assessment of

attorney fees. See TEX. CODE CRIM. PROC. ANN. 26.05(g) (West Supp. 2013); Wiley, 410 S.W.3d

at 315.

CONCLUSION

We AFFIRM the judgment of the trial court and 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 Schmidt wish to seek further review of

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

petition for discretionary review or Schmidt 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. See 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. See TEX. R. APP.

P. 68.4.

Jason Pulliam, Justice

DO NOT PUBLISH

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