Xzayvier Jaime Aguirre v. the State of Texas

• Court: Texas Court of Appeals, 7th District (Amarillo)
• Decided: January 7, 2026
• Docket: 07-25-00230-CR
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-25-00230-CR

XZAYVIER JAIME AGUIRRE, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 108th District Court Potter County, Texas Trial Court No. 084486-E-CR, Honorable Timothy G. Pirtle, Presiding

January 7, 2026 MEMORANDUM OPINION Before PARKER and DOSS and YARBROUGH, JJ.

Pending before this Court is a motion to withdraw supported by a brief filed

pursuant to Anders v. California.1 In January 2024, in exchange for a guilty plea,

Appellant, Xzayvier Jaime Aguirre was placed on deferred adjudication community

supervision for four years for assault on a pregnant person.2 Fifteen months later, the

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

2 TEX. PENAL CODE § 22.01(b)(8). State moved to adjudicate guilt alleging Appellant committed a new offense, failed to

complete his community service hours, and engaged in prohibited contact with the victim

of the offense. At a hearing on the State’s motion, Appellant pled true to the allegations

without an agreement on punishment. After hearing testimony, the trial court found him

guilty of the original charge and assessed a four-year sentence.

In support of his motion to withdraw, counsel certifies he has conducted a

professional evaluation of the record, and in his opinion, it reflects no potentially plausible

basis for reversal of Appellant’s conviction. Anders v. California, 386 U.S. 738, 744–45,

87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967); In re Schulman, 252 S.W.3d 403, 406 (Tex. Crim.

App. 2008). Counsel candidly discusses why, under the controlling authorities, the record

supports that conclusion. See High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. 1978).

Counsel has demonstrated he has complied with the requirements of Anders and In re

Schulman by (1) providing a copy of the brief and record to Appellant, (2) notifying him of

the right to file a pro se response if he desired to do so, and (3) informing him of the right

to file a pro se petition for discretionary review. In re Schulman, 252 S.W.3d at 408.3 By

letter, this Court granted Appellant an opportunity to exercise his right to file a response

3 Notwithstanding that Appellant was informed of his right to file a pro se petition for discretionary

review upon execution of the Trial Court’s Certification of Defendant’s Right of Appeal, counsel must comply with Rule 48.4 of the Texas Rules of Appellate Procedure which provides that counsel shall within five days after this opinion is handed down, send Appellant a copy of the opinion and judgment together with notification of his right to file a pro se petition for discretionary review. Id. at 408 n.22, 411. The duty to send the client a copy of this Court’s decision 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. Id. at 411 n.33.

2 to counsel’s brief, should he be so inclined. Id. at 409 n.23. Appellant did not file a

response. The State filed a response regarding attorney’s fees and costs.

ANALYSIS

By this Anders appeal, counsel candidly concedes there are no errors presented

in the record and asserts the record is not sufficiently developed to support a claim of

ineffective assistance of counsel. However, counsel requests that attorney’s fees of $700

and the $15 time payment fee be deleted. In its response, the State agrees the

assessment for attorney’s fees should be deleted but asserts statutory court costs should

remain regardless of Appellant’s indigency.

The heading “Court Costs” in the summary portion of the judgment reflects “As Per

Attached Bill of Cost.” At the bottom of the Bill of Cost are two notations as follows:

Time Payment Fee – Shall be waived, if the full payment is made on or before the 31st day after the pleading date.

Attorney fees are not collected until the court finds the defendant able to pay, pursuant to TXCCP Art. 26.05 section (g).

Relying on Alston v. State, 705 S.W.3d 849, 852 (Tex. App.—Amarillo 2024, no

pet.), counsel requests the Bill of Cost be reformed to delete the time payment fee of $15

required by article 102.030 of the Code of Criminal Procedure and assessment of

attorney’s fees because Appellant was presumed indigent throughout the proceedings.

TEX. CODE CRIM. PROC. art. 26.04(p).

3 Time Payment Fee

The Court of Criminal Appeals has held that “[t]he pendency of an appeal stops

the clock for purposes of the time payment fee.” Dulin v. State, 620 S.W.3d 129, 133

(Tex. Crim. App. 2021). Notwithstanding the language at the bottom of the Bill of Cost,

there is no assessment of a time payment fee. Thus, there is no fee for this Court to

delete. Appellant does not contest the assessment of any other court costs, and the State

is correct that they are statutorily mandated regardless of indigency. See Weir v. State,

278 S.W.3d 364, 367 (Tex. Crim. App. 2009) (holding legislatively mandated court costs

are not punitive in nature). See also Strickland v. State, No. 07-22-00294-CR, 2023 Tex.

App. LEXIS 6101, at *9 (Tex. App.—Amarillo) (mem. op.), rev’d on other grounds, 707

S.W.3d 221 (Tex. Crim. App. 2024) (noting indigency status is not a bar to assessment

and collection of legislatively mandated costs and fees)).

Attorney’s Fees

The record shows Appellant was not assessed attorney’s fees when he was placed

on deferred adjudication in January 2024. The Bill of Cost generated on July 24, 2025,

following his adjudication of guilt does include an assessment of $700 for attorney’s fees.

A trial court errs if it orders reimbursement of court-appointed attorney’s fees without

record evidence demonstrating a defendant’s financial resources to offset the costs of

legal services. Mayer v. State, 309 S.W.3d 552, 556 (Tex. Crim. App. 2010). There is

nothing in the record to show the trial court found Appellant had the financial resources

to pay as required by article 26.05(g) of the Code of Criminal Procedure. The remedy is

to delete the assessment of attorney’s fees.

4 Special Findings or Orders

When an appellate court has the necessary data before it for reformation, the

judgment may be reformed on appeal. Banks v. State, 708 S.W.2d 460, 462 (Tex. Crim.

App. 1986); Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.—Dallas 1991, pet. ref’d).

The Trial Court’s Certification of Defendant’s Right to Appeal correctly reflects Appellant

has the right of appeal. Page two of the judgment, however, includes a special finding as

follows:

APPEAL WAIVED, NO PERMISSION TO APPEAL GRANTED.

As the finding is contrary to the certification, we delete that finding from the judgment.

We too have independently examined the record to determine whether there are

any non-frivolous issues which might support this 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;

Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991). We have found no such

issues. See Gainous v. State, 436 S.W.2d 137, 138 (Tex. Crim. App. 1969). After

reviewing the record and counsel’s brief, we agree there is no plausible basis for reversal

of Appellant’s conviction. See Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim.

App. 2005).

CONCLUSION

The Bill of Cost generated on July 24, 2025, is modified to delete the assessment

of $700 for attorney’s fees. Furthermore, the district clerk is directed to prepare and file

an amended Bill of Cost reflecting the modification. The district clerk is directed to provide

5 the same to this Court, Appellant, and the Institutional Division of the Texas Department

of Criminal Justice.

As reformed to delete the special finding, the trial court’s Judgment Adjudicating

Guilt is in all other respects affirmed and counsel’s motion to withdraw is granted.

Alex Yarbrough Justice

Do not publish.