Tometheus Lee Bryant v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: July 28, 2021
• Docket: 10-18-00352-CR
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-18-00352-CR

TOMETHEUS LEE BRYANT, Appellant v.

THE STATE OF TEXAS, Appellee

From the 77th District Court Limestone County, Texas Trial Court No. 14397-A

OPINION ON REMAND 1

Tometheus Lee Bryant was convicted of assault on a family/household member

with a previous conviction and was sentenced by the trial court to eight years in prison.

We affirm the trial court’s judgment.

1 Our original memorandum opinion in this case was delivered on January 8, 2020. Bryant v. State, No. 10- 18-00352-CR, 2020 Tex. App. LEXIS 100 (Tex. App.—Waco Jan. 8, 2020). The Court of Criminal Appeals vacated our judgment on May 12, 2021. See Bryant v. State, No. PD-0092-20, 2021 Tex. Crim. App. Unpub. LEXIS 405 (Tex. Crim. App. May 12, 2021) (per curiam). Because we apply a rule recently established by the Court of Criminal Appeals to a novel fact situation likely to recur in future situations, we have designated this as an Opinion for publication. See TEX. R. APP. P. 47.4(a) and 47.2(b). Bryant’s appointed counsel filed a motion to withdraw and an Anders brief in

support of the motion asserting that counsel has diligently reviewed the appellate record

and that, in counsel's opinion, the appeal is frivolous. See Anders v. California, 386 U.S.

738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967). Counsel's brief evidences a professional

evaluation of the record for error and compliance with the other duties of appointed

counsel. We conclude that counsel has performed the duties required of appointed

counsel. See Anders, 386 U.S. at 744; High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App.

1978); see also Kelly v. State, 436 S.W.3d 313, 319-320 (Tex. Crim. App. 2014); In re Schulman,

252 S.W.3d 403, 407 (Tex. Crim. App. 2008).

In reviewing an Anders appeal, we must, "after a full examination of all the

proceedings, ... decide whether the case is wholly frivolous." Anders, 386 U.S. at 744; see

Penson v. Ohio, 488 U.S. 75, 80, 109 S. Ct. 346, 102 L. Ed. 2d 300 (1988); accord Stafford v.

State, 813 S.W.2d 503, 509-11 (Tex. Crim. App. 1991). An appeal is "wholly frivolous" or

"without merit" when it "lacks any basis in law or fact." McCoy v. Court of Appeals, 486

U.S. 429, 439 n. 10, 108 S. Ct. 1895, 100 L. Ed. 2d 440 (1988). In our review, we have paid

particular attention to the issues identified in appellant's pro se response to counsel's brief

in support of the motion to withdraw. After a review of the entire record in this appeal,

we have determined the appeal to be wholly frivolous. See Bledsoe v. State, 178 S.W.3d

824, 826-27 (Tex. Crim. App. 2005).

In briefing on remand, the parties agree that, pursuant to the Court of Criminal

Appeals’ opinion in Dulin v. State, 620 S.W.3d 129, 134 (Tex. Crim. App. 2021), the

assessment of a $25.00 time-payment fee in this case was premature. Thus, the parties

Bryant v. State Page 2 request that we modify the trial court’s judgment by deleting the $25.00 time-payment

fee from the costs that the district clerk may collect and affirm the trial court’s judgment

as modified. After reviewing the caselaw and the record in this case, we agree that the

conditional inclusion of a time-payment fee in the bill of cost by the clerk is premature.

We note that the judgment in this case does not contain an erroneous assessment

of the time-payment fee.

The trial court included in its judgment an assessment of $354.00 as court cost. The

bill of cost, dated the day after the date the sentence was imposed, identified the details

of $354.00 in court cost. In the paragraph after the total court cost amount of $354.00, the

clerk added the text, “After November 18, 2018, a Time Payment fee of $25.00 should be

assessed to the fees above (meaning the $354.00 assessed costs) if costs are NOT paid in

full.” The next line in the bill of cost specified, “Total after 30 days: $379.00.” This

amount includes the $25.00 time-payment fee contingent upon Bryant’s failure to pay

court costs in full by November 18, 2018, 31 days after the date the sentence was imposed;

but the $25.00 time-payment fee was not included in the amount assessed as court cost in

the trial court’s judgment.

Our reading of Dulin, in connection with London, Johnson, and certain provisions

of the Texas Code of Criminal Procedure regarding the collection of court costs, lead us

to conclude that we are authorized on direct appeal to order a modification of a bill of

costs independent of finding an error in the trial court’s judgment. See TEX. CODE CRIM.

PROC. arts. 103.001, 103.003, 103.006, and 103.008; Dulin v. State, 620 S.W.3d 129 (Tex.

Crim. App. 2021); London v. State, 490 S.W.3d 503, 508 n.5 (Tex. Crim. App. 2016), Johnson

Bryant v. State Page 3 v. State, 423 S.W.3d 385, 390 (Tex. Crim. App. 2014). See also Dority v. State, No. 11-19-

00236-CR, 2021 Tex. App. LEXIS 5833, *29 (Tex. App.—Eastland July 22, 2021, no pet. h.)

(publish). Thus, in accordance with Dulin, we modify the certified bill of cost in this case

by striking the conditional time-payment fee "in [its] entirety, without prejudice to [it]

being assessed later if, more than 30 days after the issuance of the appellate mandate, the

defendant has failed to completely pay any fine, court costs, or restitution that he owes."

Dulin v. State, 620 S.W.3d 129, 133 (Tex. Crim. App. 2021). Because the time-payment fee

is not included in the amount of court cost assessed in the judgment, the trial court’s

judgment is affirmed without modification.

Counsel's motion to withdraw from representation of Bryant is granted, and

counsel is discharged from representing Bryant.

TOM GRAY Chief Justice

Before Chief Justice Gray, Justice Johnson, and Justice Rose 2 Bill of cost modified Judgment affirmed Motion granted Opinion delivered and filed July 28, 2021 Publish [CR25]

2 The Honorable Jeff Rose, Former Chief Justice of the Third Court of Appeals, sitting by assignment of the Chief Justice of the Texas Supreme Court. See TEX. GOV'T CODE §§ 74.003, 75.002, 75.003.

Bryant v. State Page 4