Roger Anthony King v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: August 6, 2025
• Docket: 07-24-00414-CR
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-24-00414-CR

ROGER ANTHONY KING, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 251st District Court Randall County, Texas Trial Court No. 32710C, Honorable Ana Estevez, Presiding

August 6, 2025 MEMORANDUM OPINION Before QUINN, C.J., and PARKER and YARBROUGH, JJ.

Appellant, Roger Anthony King was charged with four counts of indecency with a

child by contact1 and one count of aggravated sexual assault of a child.2 At trial, Appellant

entered a plea of guilty to all five counts without an agreed punishment recommendation

from the State. After hearing punishment evidence, the trial court found Appellant guilty

1 See TEX. PENAL CODE ANN. § 21.11.

2 See TEX. PENAL CODE ANN. § 22.021. of all counts and sentenced him to twenty years’ incarceration for the four indecency

convictions and forty years’ incarceration on the aggravated sexual assault conviction.

The sentences were ordered to run concurrently. Appellant timely appealed. In

presenting this appeal, counsel has filed an Anders3 brief in support of a motion to

withdraw. We modify the judgments to correct an error, affirm them as modified, and

grant counsel’s motion to withdraw.

In support of his motion to withdraw, counsel has certified that he has conducted

a conscientious examination of the record and, in his opinion, the record reflects no

reversible error upon which an appeal can be predicated. Anders, 386 U.S. at 744; In re

Schulman, 252 S.W.3d 403, 406 (Tex. Crim. App. 2008). In compliance with High v.

State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel Op.] 1978), counsel has discussed

why, under the controlling authorities, the record presents no reversible error. In a letter

to Appellant, counsel notified him of the motion to withdraw; provided him a copy of the

motion, Anders brief, and appellate record; and informed him of his right to file a pro se

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

appointed counsel’s obligations on the filing of a motion to withdraw supported by an

Anders brief). By letter, this Court also advised Appellant of his right to file a pro se

response to counsel’s Anders brief. Appellant has not filed a response, and the State has

not filed a brief.

By his Anders brief, counsel discusses areas in the record where reversible error

may have occurred but concludes that the appeal is frivolous. We have independently

examined the record to determine whether there are any non-frivolous issues which might

3 See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967).

2 support an appeal. See Penson v. Ohio, 488 U.S. 75, 80, 109 S. Ct. 346, 102 L. Ed. 2d

300 (1988); In re Schulman, 252 S.W.3d at 409; Gainous v. State, 436 S.W.2d 137, 138

(Tex. Crim. App. 1969). Following our review of the appellate record and counsel’s brief,

we conclude there are no grounds for appellate review that would result in reversal of

Appellant’s conviction or sentence.

However, in his Anders brief, counsel does identify that the evidence is insufficient

to support the judgments’ assessment of $450.00 in court-appointed attorney’s fees

against Appellant. A trial court has the authority to order the reimbursement of court-

appointed attorney’s fees only if “the judge determines that a defendant has financial

resources that enable the defendant to offset in part or in whole the costs of the legal

services provided to the defendant . . ., including any expenses and costs . . . .” TEX.

CRIM. PROC. CODE ANN. art. 26.05(g); see Mayer v. State, 309 S.W.3d 552, 555–56 (Tex.

Crim. App. 2010). For attorney’s fees to be assessed, the record must reflect some

factual basis to support the trial court’s determination that the defendant has the ability to

pay some portion of the fees. Flores v. State, No. 07-17-00142-CR, 2018 Tex. App.

LEXIS 6518, at *3 (Tex. App.—Amarillo Aug. 16, 2018, no pet.) (mem. op.) (citing Barrera

v. State, 291 S.W.3d 515, 518 (Tex. App.—Amarillo 2009, no pet.) (per curiam)).

In the present case, Appellant was found to be indigent on December 19, 2022,

and the trial court appointed counsel to represent him. However, before January 16,

2023, Appellant retained counsel.4 At the conclusion of trial, the trial court asked

Appellant, “[a]re you able to pay the court costs and court-appointed attorney’s fees now,

4 Retained counsel was ordered substituted for appointed counsel. Appellant retained different counsel on two subsequent occasions before trial.

3 or is that something you would be able to make arrangements [sic] once you get

released?” Appellant responded that, “[i]f I get out of prison, it would have to be then.”

After trial, Appellant filed a “Pauper’s Oath on Appeal,” which sought the appointment of

appellate counsel on the basis of Appellant’s indigency. The trial court found Appellant

indigent and appointed counsel to represent him on appeal. In addition, the trial court

entered “Indigency Findings and Orders” that find that “[Appellant] does not presently

have sufficient resources or income to immediately pay all or part of the fine and costs

but will, in the future, have the ability to pay the fine and costs . . . .” Thus, the record

reflects that Appellant does not have the present ability to pay court-appointed attorney’s

fees. In the absence of evidence that Appellant has the present ability to pay court-

appointed attorney’s fees, the trial court’s orders that Appellant repay $450.00 in court-

appointed attorney’s fees violates article 26.05 of the Code of Criminal Procedure. See

Cates v. State, 402 S.W.3d 250, 251–52 (Tex. Crim. App. 2013) (both article 26.05(g)

and Mayer, 309 S.W.3d at 556, require trial court to find that defendant has present ability

to reimburse cost of court-appointed attorney’s fees before those fees may be assessed).

Because the record reflects that Appellant does not have a present ability to pay the cost

of his court-appointed attorney’s fees, we modify the judgments to delete the order that

Appellant pay $450.00 in attorney’s fees. Flores, 2018 Tex. App. LEXIS 6518, at *4 (citing

Bruce v. State, No. 07-12-00347-CR, 2013 Tex. App. LEXIS 31, at *6 (Tex. App.—

Amarillo Jan. 3, 2013, no pet.) (mem. op., not designated for publication)).

4 We modify the judgments to delete the assessment of $450.00 in court-appointed

attorney’s fees. We affirm the trial court’s judgments as modified and grant counsel’s

motion to withdraw.5 See TEX. R. APP. P. 43.2(b).

Judy C. Parker Justice

Do not publish.

5 Counsel shall, within five days after the opinion is handed down, send Appellant a copy of the

opinion and judgment, along with notification of Appellant’s right to file a pro se petition for discretionary review. See TEX. R. APP. P. 48.4. This duty is an informational one, not a representational one. It is ministerial in nature, does not involve legal advice, and exists after the court of appeals has granted counsel’s motion to withdraw. In re Schulman, 252 S.W.3d at 411 n.33.