Tina Marie Guerrero v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: October 17, 2024
• Docket: 07-24-00091-CR
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-24-00091-CR

TINA MARIE GUERRERO, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 121st District Court Terry County, Texas Trial Court No. 7289, Honorable John A. Didway, Presiding

October 17, 2024 MEMORANDUM OPINION Before QUINN, C.J., and PARKER and DOSS, JJ.

Appellant, Tina Marie Guerrero, appeals from a judgment adjudicating her guilt,

revoking her community supervision, and sentencing her to serve a 20-year prison term.

Appointed counsel filed an Anders 1 brief and a motion to withdraw. We will grant

counsel’s motion, modify the judgment, and affirm the judgment as modified.

1 See Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967). In January 2018, appellant was placed on deferred adjudication community

supervision for the offense of manufacturing and delivering a controlled substance in an

amount of more than four grams but less than 200 grams in a drug-free zone. The State

sought to revoke, alleging multiple violations of that community supervision. The court

held a hearing on the motion during which appellant pleaded “true” to multiple violations.

Seven of those involved the failure to abstain from the consumption, use, or possession

of a controlled substance. One concerned the failure to perform community service as

ordered.

Counsel certified that she conducted a conscientious examination of the record,

and, in her opinion, the record reflected no reversible error upon which an appeal could

be predicated. Anders, 386 U.S. at 744; In re Schulman, 252 S.W.3d 403, 406 (Tex.

Crim. App. 2008). In a letter to appellant, counsel notified her of her motion to withdraw

and provided her with a copy of the motion and the Anders brief. She also provided

appellant with a copy of the appellate record and informed her of her right to file a pro se

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

counsel’s obligations on the filing of a motion to withdraw supported by an Anders brief).

By letter, this Court also advised appellant of her right to file a pro se response by October

7, 2024. To date, appellant has not filed a response.

Proof of a single violation of a condition of community supervision supports a trial

court’s decision to revoke supervision, Sharp v. State, No. 07-19-00409-CR, 2020 Tex.

App. LEXIS 7124, at *4 (Tex. App.—Amarillo Sept. 2, 2020, pet. denied) (mem. op., not

designated for publication), as does a plea of “true” to a violation. Sanchez v. State, No.

07-13-00379-CR, 2014 Tex. App. LEXIS 3211, at *2 n.5 (Tex. App.—Amarillo Mar. 24,

2 2014, no pet.) (mem. op., not designated for publication). As noted, appellant pleaded

“true” to eight violations alleged by the State and received a sentence within the statutory

range for the offense. Thus, sufficient evidence supports the adjudication of her guilt, and

the ensuing sentence is lawful.

Furthermore, our own independent search of the record uncovered no arguable

issues warranting reversal. However, it did reveal error within the judgment which we

may correct sua sponte. The first concerns the assessment of attorney’s fees. Appellant

received appointed counsel, and the record does not indicate that she became financially

capable of retaining her own counsel. Nor did the trial court find that she became capable

of it. An indigent defendant is entitled to have an attorney appointed for representation in

criminal proceedings at no cost. TEX. CODE CRIM. PROC. ANN. art. 1.051(c). Per article

26.04(p) of the same Code, we presume an indigent criminal defendant remains indigent

absent evidence of a material change in her financial circumstances. Woodard v. State,

No. 07-23-00377-CR, 2024 Tex. App. LEXIS 4642, at *9 (Tex. App.—Amarillo July 2,

2024, no pet.) (mem. op., not designated for publication). When, as here, there is no

evidence that a defendant can pay court-appointed attorney’s fees, the proper remedy is

to reform the judgment by deleting the provision to repay court-appointed attorney’s fees.

Id. We therefore modify the judgment by deleting the order for appellant to repay court-

appointed attorney’s fees. We also modify the bill of costs to remove the entry related to

court-appointed attorney’s fees. Id.; see also, Pruitt v. State, 646 S.W.3d 879, 883 (Tex.

App.—Amarillo 2022, no pet.) (noting an appellate court has authority on direct appeal to

modify a bill of costs independent of finding an error in the trial court’s judgment).

3 The next error concerns the “time payment fee” assessed in the amount of $25.

Its assessment is premature and should be deleted without prejudice to subsequent

assessment. Like the payment of fines, costs, and restitution, the payment of the time

payment fee is suspended while an appeal pends. Dulin v. State, 620 S.W.3d 129, 133

(Tex. Crim. App. 2021). Moreover, the duty to pay the fee depends on whether fines,

costs, and the like go unpaid within the time period mentioned in the statute; the person

has until the 31st day after the date on which the judgment is entered to avoid the

obligation. See TEX. CODE CRIM. PROC. ANN. art. 102.030 (a)(2). Thus, the judgment and

bill of costs will be modified to exclude assessment of the fee at this time.

The last mistake encompasses the notation within the judgment of appellant’s

pleading “not true” to the allegations within the amended motion to revoke and adjudicate

guilt. As described earlier, she admitted to eight of the alleged probation violations

contained in the motion. Thus, we modify the judgment to reflect that appellant pleaded

true to seven instances of failing to abstain from the consumption, use, or possession of

a controlled substance and one of failing to perform 120 hours of community service.

As modified, we affirm the final judgment and grant counsel’s motion to withdraw. 2

Brian Quinn Chief Justice

Do not publish.

2 Counsel, shall, within five days after this memorandum 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 only. Counsel has no duty to provide further representation to appellant.