Johnny Ray Cupp v. the State of Texas ( 2022 )

IN THE
TENTH COURT OF APPEALS
No. 10-21-00124-CR
JOHNNY RAY CUPP,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 440th District Court
Coryell County, Texas
Trial Court No. 20-26029
MEMORANDUM OPINION
Johnny Ray Cupp pled guilty to and was convicted of aggravated assault on a
public servant with a deadly weapon. See TEX. PENAL CODE § 22.02(b)(2)(B). He was
sentenced to 7 years in prison. We affirm the trial court’s judgment as modified.
Cupp’s appointed counsel filed a motion to withdraw and an Anders brief in
support of the motion asserting that he has diligently reviewed the appellate record and
that, in his opinion, the appeal is frivolous. See Anders v. California, 386 U.S. 738 (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 v. California, 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 v. California, 386 U.S.
at 744; see Penson v. Ohio, 488 U.S. 75, 80 (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 (1988).
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).
We note, however, that a $15.00 time-payment fee was included in the costs
assessed in the judgment of conviction. 1 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
time-payment fee in this case was premature. Based on our recent comprehensive review
of Anders procedures, we have held that an appellate court can properly modify a
judgment in an Anders appeal if the modification is to correct nonreversible error, that is,
error that does not affect the judgment of guilt or the punishment. See Cummins v. State,
No. 10-21-00303-CR, ___ S.W.3d ___, 2022 Tex. App. LEXIS ____, at *___ (Tex. App.—
1
The bill of cost, which was attached to the judgment, specifically includes the time-payment fee in the
balance of the costs owed.
Cupp v. State Page 2
Waco May 11, 2022, no pet. h.) (publish). Because this error does not impact the
determination of guilt or punishment and, therefore, does not result in a reversal of the
judgment, we have the authority to modify the judgment to correct the erroneous
assessment of the time-payment fee. Id.; See also Dulin v. State, 620 S.W.3d 129 (Tex. Crim.
App. 2021). 2 Accordingly, the Judgment of Conviction by Court—Waiver of Jury Trial is
modified to delete the assessed $15.00 time-payment fee included as court costs, and we
affirm the judgment as modified.
Counsel's motion to withdraw from representation of Cupp is granted.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Johnson, and
Justice Smith
Affirmed
Opinion delivered May 11, 2022
Do not publish
[CR25]
2
We also modify the bill of cost by striking the assessed time-payment fee. See e.g., Bryant v. State, No. 10-
18-00352-CR, 2021 Tex. App. LEXIS 6000, at *3 (Tex. App.—Waco July 28, 2021, no pet. h.) (publish).
Cupp v. State Page 3