Justin James Wilson v. the State of Texas ( 2022 )

IN THE
TENTH COURT OF APPEALS
No. 10-21-00163-CR
JUSTIN JAMES WILSON,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 220th District Court
Bosque County, Texas
Trial Court No. CR15639
MEMORANDUM OPINION
Justin James Wilson was convicted of obstruction or retaliation and sentenced to
five years in prison. See TEX. PENAL CODE § 36.06(c).
Wilson’s appointed counsel filed a motion to withdraw and a brief in support of
the motion asserting that he has diligently reviewed the appellate record and that, in his
opinion, the appeal is frivolous pursuant to the United States Supreme Court opinion in
Anders, but also presenting nonreversible error in the judgment pursuant to this Court’s
order in Allison. See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967);
Allison v. State, 609 S.W.3d 624, 628 (Tex. App.—Waco 2020, order).
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 the Anders portion of this 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). 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); Cummins v. State, 646 S.W.3d 605,
620-621(Tex. App.—Waco 2022, pet. ref'd).
As noted previously, despite finding no reversible error, counsel has presented
issues of nonreversible error, that being, court-appointed attorney’s fees, a $25.00 time
payment fee, and an additional threatened time payment fee. The State did not file a brief
in response to these alleged errors. See Cummins, 646 S.W.3d at 615 (“the State is expected
to file a response addressing the merits of the nonreversible error presented in the Allison
brief. See, e.g., Price [v. State], [No. 10-13-00403-CR,] 2014 Tex. App. LEXIS 10403, []*2
Wilson v. State Page 2
[(Tex. App.—Waco Sep. 18, 2014, no pet.)] (parenthetical omitted).”
We agree that these are nonreversible errors. There is no evidence that Wilson
could pay attorney’s fees. See Cates v. State, 402 S.W.3d 250, 252 (Tex. Crim. App. 2013).
Further, any time payment fee assessed or threatened is premature. See Dulin v. State, 620
S.W.3d 129, 133 (Tex. Crim. App. 2021).
Accordingly, the trial court’s judgment is modified to assess court cost in the
amount of $224.00. As modified, the trial court’s judgment is affirmed, 1 and counsel's
motion to withdraw from representation of Wilson is granted.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Johnson, and
Justice Smith
Affirmed; motion granted
Opinion delivered and filed November 30, 2022
Do not publish
[CR25]
1
The bill of cost should be modified to reflect the cost due in the judgment as modified.
Wilson v. State Page 3