Robert Michael Eubank v. State

• Court: Court of Appeals of Texas
• Decided: June 27, 2019
• Docket: 02-18-00351-CR
• Status: Published

Opinion

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

No. 02-18-00351-CR ___________________________

ROBERT MICHAEL EUBANK, Appellant

V.

THE STATE OF TEXAS

On Appeal from the 355th District Court Hood County, Texas Trial Court No. CR12185

Before Gabriel, Pittman, and Birdwell, JJ. Memorandum Opinion by Justice Gabriel MEMORANDUM OPINION

Appellant Robert Michael Eubank appeals from the trial court’s revocation of

his community supervision, adjudication of his guilt for possession of more than 4 but

less than 200 grams of methamphetamine with the intent to deliver, and imposition of

a 30-year sentence. We modify the trial court’s judgment adjudicating guilt to delete

two charged costs and affirm it as modified. See Tex. R. App. P. 43.2(b).

Eubank was indicted with the intentional or knowing possession of more than

4 but less than 200 grams of methamphetamine with the intent to deliver—a first-

degree felony. See Tex. Health & Safety Code Ann. § 481.112(a), (d); see also id.

§ 481.102(6). Eubank and the State entered into a plea-bargain agreement under

which Eubank agreed to plead guilty in exchange for the State’s recommendation that

an adjudication of his guilt be deferred and that he be placed on community

supervision for a period of ten years. As part of the guilty-plea memorandum,

Eubank signed a sworn judicial confession to the charged offense, stating that his plea

was “made of [his] own free will because [he was] guilty and for no other reasons”

and that he voluntarily waived his right to appeal. Further, Eubank was notified that

his court costs at that time included a $500 court-appointed attorney fee. The trial

court followed the State’s recommendation and placed Eubank on community

supervision for ten years without adjudicating his guilt. The trial court then certified

that Eubank had no right to appeal the deferred-adjudication order. See Tex. R. App.

P. 25.2(a)(2).

2 During the period of community supervision, the State moved to proceed to an

adjudication of Eubank’s guilt based on his violations of the imposed terms and

conditions of community supervision. At the hearing on the State’s motion, Eubank

pleaded not true to each of the State’s violation allegations. Eubank’s community-

supervision officer testified and specified how Eubank had failed to comply as alleged

in the State’s motion. The trial court found that Eubank had violated the terms and

conditions of his community supervision, adjudicated him guilty of the indicted

offense, and sentenced him to thirty years’ confinement. The trial court included in

its judgment adjudicating guilt $433.38 in court costs; this amount is supported by the

district clerk’s subsequent, itemized bill of cost. See Tex. Code Crim. Proc. Ann. art.

103.001(b). The trial court certified that Eubank had the right to appeal from the

adjudication and found that he was entitled to court-appointed counsel on appeal. See

Tex. R. App. P. 25.2(a)(2).

Eubank’s court-appointed appellate counsel has filed a motion to withdraw,

accompanied by a brief in support of that motion. In his thorough brief, counsel

states that in his professional opinion, this appeal is frivolous and without merit. The

brief and motion present a professional evaluation of the record demonstrating why

there are no arguable grounds for relief. See Anders v. California, 386 U.S. 738, 744

(1967); Kelly v. State, 436 S.W.3d 313, 319 (Tex. Crim. App. 2014). Although Eubank

requested a copy of the appellate record and was provided with one, he has not

3 responded to his counsel’s Anders brief or motion to withdraw. Similarly, the State

did not respond to counsel’s motion and brief.

Once an appellant’s court-appointed attorney files a motion to withdraw on the

ground that an appeal is frivolous and fulfills the requirements of Anders and Kelly, we

have a supervisory obligation to undertake an independent examination of the record.

See Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991); Mays v. State,

904 S.W.2d 920, 922–23 (Tex. App.—Fort Worth 1995, no pet.). In this evaluation,

we consider the record, the arguments raised in the Anders brief, and any response

filed by the pro se appellant. See United States v. Wagner, 158 F.3d 901, 902 (5th Cir.

1998); In re Schulman, 252 S.W.3d 403, 409 (Tex. Crim. App. 2008) (orig. proceeding).

After reviewing the itemized bill of cost, we conclude that two amounts must

be deleted from the total amount charged as court costs in the judgment. First, we

find no statutory authority authorizing the $15 assessed for “Motion to

Proceed/Revoke” in the itemized bill of cost. See Thomas v. State, No. 02-18-00337-

CR, 2019 WL 166001, at *2 (Tex. App.—Jan. 10, 2019, no pet.) (per curiam) (mem.

op., not designated for publication). Because “[o]nly statutorily authorized costs may

be assessed against a criminal defendant,” we must delete that amount from the costs

charged in the judgment. Johnson v. State, 423 S.W.3d 385, 389 (Tex. Crim. App. 2014);

see Thomas, 2019 WL 166001, at *2. Second, the $4.38 charged as a “RESTITUTION

FEE” is punitive in nature and must be orally pronounced upon revocation and

adjudication. See Weir v. State, 278 S.W.3d 364, 365–66 (Tex. Crim. App. 2009); see also

4 Tex. Code Crim. Proc. Ann. art. 42.037(g). It was not; thus, this amount must be

deleted as well. All other costs in the bill are either statutorily authorized and

nonpunitive or were not appropriately challenged after the deferred-adjudication

order was entered as required. See, e.g., Tex. Gov’t Code Ann. §§ 51.851(d), 102.021–

.0212; Tex. Loc. Gov’t Code Ann. §§ 133.102–.107; Tex. Code Crim. Proc. Ann. arts.

102.0045, .005, .008, .011, .0169, .017, .0178, .020; Riles v. State, 452 S.W.3d 333, 337–

38 (Tex. Crim. App. 2015).

Other than these minor adjustments to the charged costs, there is nothing in

the record that might arguably support the appeal. See Bledsoe v. State, 178 S.W.3d 824,

827–28 (Tex. Crim. App. 2005). Thus, we grant counsel’s motion to withdraw,

modify the judgment and the attached order to withdraw funds to reflect $414 in

court costs,1 and affirm the trial court’s judgment as modified. See Penson v. Ohio,

488 U.S. 75, 82–83 (1988); Kelly, 436 S.W.3d at 318–19; Boone v. State, No. 02-15-

00417-CR, 2016 WL 4040563, at *2–3 (Tex. App.—Fort Worth July 28, 2016, no pet.)

(mem. op., not designated for publication).

/s/ Lee Gabriel

Lee Gabriel Justice

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

Delivered: June 27, 2019

1 $433.38 – $15.00 – $4.38 = $414.