Gerardo Alonzo Lopez v. State ( 2019 )

Opinion filed August 30, 2019
In The
Eleventh Court of Appeals
___________
No. 11-19-00027-CR
___________
GERARDO ALONZO LOPEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 244th District Court
Ector County, Texas
Trial Court Cause No. C-18-1149-CR
MEMORANDUM OPINION
Based upon an open plea of guilty, the trial court convicted Appellant of
felony driving while intoxicated. After a hearing on punishment, the trial court
assessed Appellant’s punishment at confinement for five years and a fine of $500.
We modify the trial court’s judgment and affirm as modified.
Appellant’s court-appointed counsel has filed 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 this appeal is frivolous
and without merit. Counsel has provided Appellant with a copy of the brief, a copy
of the motion to withdraw, a copy of the clerk’s record and the reporter’s record, and
an explanatory letter. 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 in order to seek review by the Texas Court of
Criminal Appeals. 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 has not filed a response to counsel’s Anders brief. 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
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 Section 133.103, subsections (b) and (d) of the Texas Local
Government Code as a court cost. See id.
1
We note that Appellant has a right to file a petition for discretionary review pursuant to Rule 68
of the Texas Rules of Appellate Procedure.
2
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; modify the judgment of the trial court
as set forth above; and, as modified, affirm the judgment of the trial court.
PER CURIAM
August 30, 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