Robert Goldsmith v. the State of Texas

Opinion

Opinion issued March 20, 2025

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-24-00473-CR NO. 01-24-00474-CR ——————————— ROBERT GOLDSMITH, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 182nd District Court Harris County, Texas Trial Court Case Nos. 1814484, 1814485

MEMORANDUM OPINION

A Harris County jury convicted Robert Goldsmith of the third-degree felony

offense of evading arrest or detention with a vehicle and the state-jail felony offense of unauthorized use of a motor vehicle.1 See TEX. PENAL CODE §§ 38.04(a),

(b)(2)(A), 31.07. For both offenses, the jury also answered “true” to two

enhancement paragraphs. See id. §§ 12.42(d), 12.425(b), 12.33(a). The trial court

assessed Goldsmith’s punishment at twenty-eight years’ confinement for the

evading arrest conviction and at five years’ confinement for the unauthorized use of

a motor vehicle conviction, to run concurrently. In each case, the judgment imposed

court costs and reimbursement fees, which were later itemized in a criminal bill of

costs. Goldsmith timely filed notices of appeal in each case. Goldsmith’s counsel

filed a brief in each case arguing that no issues of reversible error exist and

challenging the imposition of fees and costs. We affirm the judgments as modified

and grant counsel’s motion to withdraw.

Anders Analysis

Goldsmith’s appointed appellate counsel has filed a motion to withdraw in

each appeal, along with a brief stating that the records present no reversible error

and thus the appeals are without merit and are frivolous. See Anders v. California,

386 U.S. 738, 744 (1967). Counsel’s briefs meet the Anders requirements by

presenting a professional evaluation of the records and supplying us with references

1 The evading arrest offense corresponds to appellate cause number 01-24-00473-CR and trial court cause number 1814484. The unauthorized use of a motor vehicle offense corresponds to appellate cause number 01-24-00474-CR and trial court cause number 1814485. 2 to the records and to legal authority. See id.; see also High v. State, 573 S.W.2d 807,

812 (Tex. Crim. App. 1978). Counsel states that he has thoroughly reviewed the

record in each appeal and is unable to advance any ground of error that warrants

reversal. See Anders, 386 U.S. at 744; Mitchell v. State, 193 S.W.3d 153, 155 (Tex.

App.—Houston [1st Dist.] 2006, no pet.).

Goldsmith’s counsel has certified that he provided Goldsmith with a copy of

the briefs and the motions to withdraw. See In re Schulman, 252 S.W.3d 403, 408

(Tex. Crim. App. 2008). Counsel has also certified that he informed Goldsmith of

his right to file a pro se response and provided him with a copy of the record in each

appeal.2 See Kelly v. State, 436 S.W.3d 313, 319–20 (Tex. Crim. App. 2014).

Goldsmith filed a motion requesting access to the appellate records, which this Court

granted, but he did not file a pro se response in either appeal.

We have independently reviewed the entire record in each appeal, and we

conclude that no reversible error exists in the records, and except for the challenge

to court costs and fees, there are no arguable grounds for review, and the appeals are

frivolous. See Anders, 386 U.S. at 744 (stating that reviewing court, not counsel,

2 This Court also notified Goldsmith that his counsel had filed an Anders brief and a motion to withdraw in each appeal and informed him that he had a right to examine the appellate records and file a response to his counsel’s Anders brief. This Court also provided Goldsmith with a form motion to access the appellate records. See Kelly v. State, 436 S.W.3d 313, 319–22 (Tex. Crim. App. 2014); In re Schulman, 252 S.W.3d 403, 408–09 (Tex. Crim. App. 2008). 3 determines “after a full examination of all the proceedings” whether “the case is

wholly frivolous”); Garner v. State, 300 S.W.3d 763, 767 (Tex. Crim. App. 2009)

(stating that reviewing court has duty to determine whether arguable grounds for

review exist); Mitchell, 193 S.W.3d at 155 (stating that we make this determination

by reviewing “entire record”). An appellant may challenge a holding that there are

no arguable grounds for appeal by filing a petition for discretionary review in the

Texas Court of Criminal Appeals. Bledsoe v. State, 178 S.W.3d 824, 827 & n.6 (Tex.

Crim. App. 2005).

Court Costs and Fees

Although not an arguable ground for reversal, Goldsmith challenges the court

costs and fees assessed in both judgments. Specifically, Goldsmith argues that the

bills of costs evidence the trial court’s intent to waive the costs and fees altogether.

Goldsmith requests that the Court modify the judgment in each appeal to reflect a

waiver of the fees and costs.3 The State responds that the issue is moot because the

bills of costs reflect that Goldsmith owes $0. Alternatively, the State agrees with

Goldsmith that the trial court waived costs and fees in both appeals, and it argues

that if the issue is not moot, the Court should modify the judgment in each case to

3 Goldsmith also argues that the bills of costs improperly calculated the fees for summoning witnesses. See TEX. CODE CRIM. PROC. art. 102.011(a)(3). However, because we ultimately conclude that the judgment should be modified to reflect that the fees and costs were waived, we need not consider this alternative argument. See TEX. R. APP. P. 47.1. 4 indicate that no costs or fees were assessed against Goldsmith due to the trial court’s

finding that he is indigent.

Appellate courts have the authority to modify a trial court’s judgment when

the appellate record contains the necessary information to do so. See TEX. R. APP. P.

43.2(b); Bigley v. State, 865 S.W.2d 26, 27–28 (Tex. Crim. App. 1993). This

authority extends “to reform a judgment in an Anders appeal and to affirm that

judgment as reformed.” Ledet v. State, No. 01-22-00015-CR, 2022 WL 3589182, at

*2 (Tex. App.—Houston [1st Dist.] Aug. 23, 2022, no pet.) (per curiam) (mem. op.,

not designated for publication) (quoting Hubbard v. State, No. 02-13-00300-CR,

2014 WL 1767475, at *1 (Tex. App.—Fort Worth May 1, 2014, no pet.) (per curiam)

(mem. op., not designated for publication)); see Cummins v. State, 646 S.W.3d 605,

617 (Tex. App.—Waco 2022, pet. ref’d). When, as here, court costs are not imposed

in open court and the judgment does not itemize the costs, a defendant may challenge

the court costs assessed in a bill of costs for the first time on appeal. London v. State,

490 S.W.3d 503, 507 (Tex. Crim. App. 2016); Cummins, 646 S.W.3d at 616.

“Only statutorily authorized court costs may be assessed against a criminal

defendant.” Johnson v. State, 423 S.W.3d 385, 389 (Tex. Crim. App. 2014). Thus,

we may modify the bill of costs to reflect the appropriate statutory costs and delete

improper charges. See id. at 390 (“[W]e review the assessment of court costs on

appeal to determine if there is a basis for the cost.”); Pacas v. State, 612 S.W.3d 588,

5 596–97 (Tex. App.—Houston [1st Dist.] 2020, pet. ref’d); Segura v. State, No. 02-

21-00052-CR, 2022 WL 2840143, at *2 (Tex. App.—Fort Worth July 21, 2022, no

pet.) (mem. op., not designated for publication). A bill of costs need not be orally

pronounced or incorporated by reference in the judgment to be effective. Armstrong

v. State, 340 S.W.3d 759, 766 (Tex. Crim. App. 2011).

If a trial court determines that a defendant is indigent and thus lacks “sufficient

resources or income to immediately pay all or part of the costs,” the court may waive

the costs in full or in part. TEX. CODE CRIM. PROC. arts. 42.15(a-1)(3), 43.091(c). “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.” Id. art. 26.04(p); see London, 490

S.W.3d at 509.

In the judgment of conviction underlying appellate cause number 01-24-

00473-CR, the trial court assessed $290 in court costs and $145 in reimbursement

fees against Goldsmith, for a total of $435. In the judgment of conviction underlying

appellate cause number 01-24-00474-CR, the trial court assessed $290 in court costs

and $25 in reimbursement fees against Goldsmith, for a total of $315. Neither

judgment itemized the costs and fees. However, the criminal bill of costs issued in

each case itemized the total fees and costs reflected in each judgment. Both bills of

6 costs further stated that the entire amount of the costs and fees in each case were

“Probated or Waived,” and they reflected that Goldsmith owed $0 in each case.

As an initial matter, we disagree with the State that the issue of waiver of costs

and fees is moot. When an issue becomes moot, there no longer exists a controversy

between the litigating parties as to that issue. See Ex parte Sewell, 495 S.W.3d 54,

55 (Tex. App.—Houston [14th Dist.] 2016, no pet.). A moot issue is not justiciable.

See id. Here, the bill of costs in each case stated that the total amount of costs and

fees was “Probated or Waived.” The term “probated” indicates that the costs and

fees may have been suspended rather than waived. See Probate, BLACK’S LAW

DICTIONARY (12th ed. 2024) (defining “probate” to include “to suspend (a sentence)

by means of probation”). Thus, neither bill of costs resolves the issue whether the

costs and fees were waived or were instead probated. We therefore conclude that a

justiciable controversy exists concerning whether costs and fees were waived.

Nevertheless, the State does not dispute Goldsmith’s contention that the costs

and fees were waived. Goldsmith was eligible for waiver of costs and fees because

the trial court determined that he was indigent. See TEX. CODE CRIM. PROC. arts.

42.15(a-1)(3), 43.091(c), 26.04(p). As the State points out, in a similar situation, this

Court has previously vacated the bill of costs and modified the judgment to include

a special order stating, “No costs assessed against [the defendant] due to trial court’s

finding of indigency.” See Brown v. State, No. 01-20-00306-CR, 2021 WL 1537651,

7 at *1 (Tex. App.—Houston [1st Dist.] Apr. 20, 2021, no pet.) (mem. op., not

designated for publication). Because the State does not dispute Goldsmith’s

contention that the trial court waived costs and fees in each appeal, we conclude that

the bill of costs in each appeal should be vacated and the judgment in each appeal

should be modified to reflect that no costs or fees were assessed against Goldsmith

due to the trial court’s finding of indigency.

We sustain this issue.

Conclusion

We vacate the criminal bill of costs in each appeal. We further modify the

judgment in each appeal to state “No costs or fees assessed against Robert Goldsmith

due to the trial court’s finding of indigency” and affirm the judgments as modified.

We further grant counsel’s motion to withdraw. Attorney Allen C. Isbell must

immediately send Goldsmith the required notice and file a copy of the notice with

the Clerk of this Court.4 See TEX. R. APP. P. 6.5(c). We dismiss any other pending

motions as moot.

PER CURIAM Panel consists of Chief Justice Adams and Justices Gunn and Guiney.

Do not publish. TEX. R. APP. P. 47.2(b).

4 Appointed counsel still has a duty to inform Goldsmith of the result of this appeal and that he may, on his own, pursue discretionary review in the Texas Court of Criminal Appeals. See Ex parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997) (per curiam). 8