Tyree Jacoby Allen Patterson v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: August 30, 2023
• Docket: 09-22-00308-CR
• Status: Published

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-22-00308-CR NO. 09-22-00309-CR __________________

TYREE JACOBY ALLEN PATTERSON, Appellant

V.

THE STATE OF TEXAS, Appellee

________________________________________________________________

On Appeal from the 253rd District Court Liberty County, Texas Trial Cause Nos. 21DC-CR-00623 and 21DC-CR-00624 __________________________________________________________________

MEMORANDUM OPINION

Appellant Tyree Jacoby Allen Patterson was convicted in two trial causes of

burglary of a habitation with the attempt to commit the felony offense of sexual

assault, a first-degree felony. See Tex. Penal Code Ann. § 30.02(d). Both indictments

included an enhancement paragraph and a habitual-offender paragraph. See id.

§ 12.42. The indictments alleged that both offenses occurred on the same date and

1 at the same home, and there was evidence before the jury that Patterson attempted

sexual assault against two people—the homeowner and the homeowner’s mother.

Patterson pleaded “not guilty” in both trial causes, but the jury found Patterson

guilty in both causes. Patterson pleaded “not true” to the enhancement and habitual

paragraphs, and after a hearing on punishment, the jury found the enhancement and

habitual allegations “true” and sentenced Patterson to fifty-five years of confinement

in each cause. The trial court ordered the sentences to run concurrently. Patterson

timely filed notices of appeal in each trial cause.

Patterson’s appellate counsel filed briefs that present counsel’s professional

evaluation of the record, and the appellate counsel concludes the appeals are without

merit and that there are no meritorious issues for appeal and no arguable grounds for

reversal. See Anders v. California, 386 U.S. 738 (1967); High v. State, 573 S.W.2d

807 (Tex. Crim. App. 1978). On April 14, 2023, we granted an extension of time for

Patterson to file pro se briefs, and Patterson filed pro se briefs in response.

The Court of Criminal Appeals has held that when a court of appeals receives

an Anders brief and also a pro se brief, an appellate court has two choices. See

Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005). “It may determine

that the appeal is wholly frivolous and issue an opinion explaining that it has

reviewed the record and finds no reversible error[;] [o]r, it may determine that

arguable grounds for appeal exist and remand the cause to the trial court so that new

2 counsel may be appointed to brief the issues.” Id. We do not address the merits of

each claim raised in an Anders brief or a pro se brief when we have determined there

are no arguable grounds for review. Id. at 827.

Upon receiving an Anders brief, a court must conduct a full examination of

the record to determine whether the appeal is wholly frivolous. Penson v. Ohio, 488

U.S. 75, 80 (1988) (citing Anders, 386 U.S. at 744). We have reviewed the entire

record in both cases, counsel’s briefs, and Patterson’s pro se briefs, and we have

found no reversible error, and we conclude the appeals are wholly frivolous. See

Bledsoe, 178 S.W.3d at 827-28 (“Due to the nature of Anders briefs, by indicating

in the opinion that it considered the issues raised in the briefs and reviewed the record

for reversible error but found none, the court of appeals met the requirements of

Texas Rule of Appellate Procedure 47.1.”). Therefore, we find it unnecessary to

order appointment of new counsel to re-brief the appeals. Cf. Stafford v. State, 813

S.W.2d 503, 511 (Tex. Crim. App. 1991).

The Anders briefs assert that the trial court assessed court costs of $400 in

both trial causes even though the cases were tried together. A review of the “Felony

Court Cost” sheet for each case shows that the fees of $400 charged in trial cause

21DC-CR-00623 were also assessed in trial cause number 21DC-CR-00624. Where

a criminal defendant is convicted of two or more offenses in the same action, the

trial court may assess each court cost or fee only once. See Tex. Code Crim. Proc.

3 Ann. art. 102.073(a). Therefore, the records show that $400 of the costs are

duplicative. We affirm the judgment in trial cause number 21DC-CR-00623. And

we modify the judgment in trial cause number 21DC-CR-00624 to delete the $400

in court costs and affirm that judgment as modified. See Tex. R. App. P. 43.2(b) (An

appellate court may modify the trial court’s judgment and affirm the judgment as

modified); Bigley v. State, 865 S.W.2d 26, 27 (Tex. Crim. App. 1993) (a court of

appeals may modify the judgment of the court below by correcting or reforming it).1

AFFIRMED; AFFIRMED AS MODIFIED.

_________________________ LEANNE JOHNSON Justice

Submitted on August 14, 2023 Opinion Delivered August 30, 2023 Do Not Publish

Before Golemon, C.J., Johnson and Wright, JJ.

1 Patterson may challenge our decision in these cases by filing petitions for discretionary review. See Tex. R. App. P. 68. 4