Tommie Montray Thorton v. State

• Court: Court of Appeals of Texas
• Decided: March 5, 2015
• Docket: 07-13-00289-CR
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo ________________________

No. 07-13-00289-CR ________________________

TOMMIE MONTRAY THORTON, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 181st District Court Potter County, Texas Trial Court No. 66,276-B; Honorable John Board, Presiding

March 5, 2014

MEMORANDUM OPINION Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

In January 2013, Appellant, Tommie Montray Thorton, was indicted for

intentionally, knowingly or recklessly causing bodily injury to Tori Thompson, a person

with whom he had a dating relationship, by striking her. Because the indictment further

alleged Thorton had previously been convicted of a similar offense against a member of his family or household, the offense was punishable as a third degree felony. 1 An

enhancement paragraph also alleged he had been convicted of the felony offense of

burglary of a habitation on March 9, 2009, making the offense punishable as a second

degree felony.2 Following a trial to the bench, Appellant was found guilty, pled true to

the enhancement, and sentenced to fifteen years confinement. In presenting this

appeal, counsel has filed an Anders3 brief in support of a motion to withdraw. We grant

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

MOTION TO W ITHDRAW

In support of his motion to withdraw, counsel certifies he has diligently reviewed

the record, and in his opinion, the record reflects no reversible error upon which an

appeal can be predicated. Anders v. California, 386 U.S. 738, 744-45, 87 S. Ct. 1396,

18 L. Ed.2d 493 (1987); In re Schulman, 252 S.W.3d 403, 406 (Tex. Crim. App. 2008).

Thus, he concludes the appeal is frivolous.

Counsel candidly discusses why, under the controlling authorities, there is no

error in the court’s judgment. See High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App.

1978). He also shows he sent a copy of his brief to Appellant and informed Appellant

that, in his view, the appeal is without merit. Counsel demonstrates he notified

Appellant of his right to review the record and file a pro se response if he desired to do

1 See TEX. PENAL CODE ANN. § 22.01(b)(2)(A) (West Supp. 2014) .

2 See TEX. PENAL CODE ANN. § 12.42(a) (West Supp. 2014) . 3 Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed.2d 493 (1967).

2 so.4 The Clerk of this Court also advised Appellant by letter of his right to file a

response to counsel’s brief. Appellant did not file a response. The State elected not to

file a brief.

We have independently examined the entire record to determine whether there

are any non-frivolous grounds which might support the appeal. See Penson v. Ohio,

488 U.S. 75, 80, 109 S. Ct. 346, 102 L. Ed.2d 300 (1988); Stafford v. State, 813 S.W.2d

503, 511 (Tex. Crim. App. 1991). We have found no such grounds. After reviewing the

record and counsel’s brief, we agree with counsel that the appeal is frivolous. See

Bledsoe v. State, 178 S.W.3d 824, 827-28 (Tex. Crim. App. 2005).

ATTORNEY’S FEES

In our review of the record, we noticed the judgment assessed court costs “per

attached the Bill of Cost.” Attached to the judgment was a bill of cost prepared by the

district clerk, charging Appellant “Attorney Fee(s)—Original Plea Agreement CCP 26.05

$1350.00.” Besides the fact this was a bench trial and not a plea-bargain,5 there was

no evidence of record indicating any change in Appellant’s status as an indigent since

being indicted. To the contrary, for purposes of this appeal, the trial court found

Appellant indigent and appointed counsel to represent him. Because there is no

evidence to support the assessment of attorney’s fees, the judgment and bill of cost are

modified to delete the requirement that Appellant pay $1,350.00 in court-appointed

attorney’s fees. This order of reformation of the judgment and bill of cost extends to any

4 See Kelly v. State, 436 S.W.3d 313 (Tex. Crim. App. 2014). 5 See Trial Court’s Certification of Defendant’s Right to Appeal.

3 order to withdraw funds from Appellant’s inmate account. Accordingly, the district clerk

is ordered to prepare an amended bill of cost and order to withdraw funds, if any. See

Mayes v. State, No. 07-13-00344-CR, 2014 Tex. App. LEXIS 12104, at *15-17 (Tex.

App.—Amarillo Nov. 5, 2014, no pet.) (mem. op., not designated for publication).

Counsel’s motion to withdraw is granted and the trial court’s judgment is affirmed

as modified.6

Patrick A. Pirtle Justice

Do not publish.

6 In granting counsel’s motion to withdraw, however, we remind counsel of his “educational” duty to inform Appellant of this Court’s decision and of his right to file a pro se petition for discretionary review in the Criminal Court of Appeals. Ex parte Owens, 206 S.W.3d 670, 673-74 (Tex. Crim. App. 2006).