Matthew John Armindariz v. State ( 2019 )

Opinion filed August 15, 2019
In The
Eleventh Court of Appeals
__________
No. 11-19-00021-CR
__________
MATTHEW JOHN ARMINDARIZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 358th District Court
Ector County, Texas
Trial Court Cause No. D-45,887
MEMORANDUM OPINION
The jury convicted Appellant, Matthew John Armindariz, of the offense of
murder and assessed his punishment at confinement for life. We modify the trial
court’s judgment to delete a portion of the Time Payment Fee assessed as a court
cost and, as modified, affirm the trial court’s judgment.
Appellant’s court-appointed counsel has filed in this court a motion to
withdraw. The motion is supported by a brief in which counsel professionally and
conscientiously examines the record and applicable law and concludes that there are
no arguable issues to present on appeal. Counsel provided Appellant with a copy of
the brief, a copy of the motion to withdraw, and a copy of both the clerk’s record
and the reporter’s record. Counsel advised Appellant of his right to review the record
and file a response to counsel’s brief. Counsel also advised Appellant of his right to
file a petition for discretionary review. See TEX. R. APP. P. 68. Court-appointed
counsel has complied with the requirements of Anders v. California, 386 U.S. 738
(1967); Kelly v. State, 436 S.W.3d 313 (Tex. Crim. App. 2014); In re Schulman, 252
S.W.3d 403 (Tex. Crim. App. 2008); and Stafford v. State, 813 S.W.2d 503 (Tex.
Crim. App. 1991).
Appellant subsequently filed a response to counsel’s Anders brief. We have
reviewed Appellant’s response. In addressing an Anders brief and a pro se response,
a court of appeals may only determine (1) that the appeal is wholly frivolous and
issue an opinion explaining that it has reviewed the record and finds no reversible
error or (2) that arguable grounds for appeal exist and remand the cause to the trial
court so that new counsel may be appointed to brief the issues. Schulman, 252
S.W.3d at 409; Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim. App. 2005).
Following the procedures outlined in Anders and Schulman, we have independently
reviewed the record, and we agree with counsel that no arguable grounds for appeal
exist.1
We note, however, that the judgment contains a nonreversible error. In the
judgment, the trial court ordered Appellant to pay court costs, including a Time
Payment Fee of $25 pursuant to Section 133.103 of the Texas Local Government
Code. See TEX. LOC. GOV’T CODE ANN. § 133.103 (West Supp. 2018). We recently
held that subsections (b) and (d) of that section are facially unconstitutional because
1
We note that Appellant has a right to file a petition for discretionary review pursuant to TEX. R.
APP. P. 68.
2
the collected fees are allocated to general revenue and are not sufficiently related to
the criminal justice system. See King v. State, No. 11-17-00179-CR, 2019 WL
3023513, at *1, 5–6 (Tex. App.—Eastland July 11, 2019, pet. filed) (mem. op., not
designated for publication). Accordingly, the trial court erred when it assessed a
Time Payment Fee under Sections 133.103, subsections (b) and (d) of the Texas
Local Government Code as a court cost. See id.
When the trial court erroneously includes fees as court costs, we should
modify the trial court’s judgment to remove the improperly assessed fees. See
Cates v. State, 402 S.W.3d 250, 252 (Tex. Crim. App. 2013). We, therefore, modify
the trial court’s judgment to delete $22.50 of the Time Payment Fee assessed as court
costs, leaving a Time Payment Fee of $2.50. See King, 2019 WL 3023513, at *5–6.
We grant counsel’s motion to withdraw, and we affirm the judgment of the
trial court as modified.
PER CURIAM
August 15, 2019
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Stretcher, J., and Wright, S.C.J.2
Willson, J., not participating.
2
Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.
3