Crystal Rena Weber v. the State of Texas ( 2023 )

Opinion issued February 23, 2023
In The
Court of Appeals
For The
First District of Texas
NO. 01-22-00485-CR
____________
CRYSTAL RENA WEBER, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 149th District Court
Brazoria County, Texas
Trial Court Cause No. 92699-CR
MEMORANDUM OPINION
Appellant Crystal Rena Weber pleaded guilty to the offense of possession of a
controlled substance weighing less than one gram. See TEX. HEALTH & SAFETY CODE
§ 481.115(b). The trial court deferred an adjudication of guilt and placed Weber
under community supervision for two years. The State then filed a motion to revoke
deferred adjudication.
At the hearing on the State’s motion to revoke deferred adjudication, Weber
pleaded “true” to all the allegations in the State’s motion. The trial court found the
allegations “true,” adjudicated appellant’s guilt, and assessed punishment at 15
months’ confinement. This appeal followed.
On appeal, Weber’s appointed counsel filed a motion to withdraw with a brief
stating that the record presents no reversible error, that the appeal is without merit,
and is frivolous. See Anders v. California, 386 U.S. 738 (1967).
Counsel’s brief meets the Anders requirements by presenting a professional
evaluation of the record and supplying us with references to the record and legal
authority. 386 U.S. at 744; see also High v. State, 573 S.W.2d 807, 812 (Tex. Crim.
App. 1978). Counsel indicates that he has thoroughly reviewed the record and is
unable to advance any grounds of error that warrant reversal. See Anders, 386 U.S.
at 744; Mitchell v. State, 193 S.W.3d 153, 155 (Tex. App.—Houston [1st Dist.] 2006,
no pet.).
2
Counsel has advised Weber of her right to access the record and has provided
her with a form motion for access to the record. Counsel further advised Weber of
her right to file a pro se response to the Anders brief. Weber has done neither.
We have independently reviewed the entire record in this appeal. Based on
that review, we conclude that no error to reverse Weber’s conviction exists in the
record, that there are no arguable grounds for review, and that the appeal from her
conviction is frivolous.1 See Anders, 386 U.S. at 744 (emphasizing that reviewing
court—and not counsel—determines, after full examination of proceedings, whether
appeal is wholly frivolous).2
Weber’s counsel further contends that because Weber is indigent, the
assessment of $900 in attorney’s fees in the final judgment should be deleted. We
agree.
A trial court’s authority to order a defendant to repay the cost of court-
appointed legal counsel is expressly conditioned on the court determining that the
defendant has the financial resources and ability to pay. TEX. CODE CRIM. PROC. art.
1
We note that an appellant may challenge a holding that there are no arguable grounds
for appeal by filing a petition for discretionary review in the Texas Court of Criminal
Appeals. See Bledsoe v. State, 178 S.W.3d 824, 827 & n.6 (Tex. Crim. App. 2005).
2
See also Garner v. State, 300 S.W.3d 763, 767 (Tex. Crim. App. 2009) (reviewing
court must determine whether arguable grounds for review exist); Bledsoe, 178
S.W.3d at 826–27 (same); Mitchell, 193 S.W.3d at 155 (reviewing court determines
whether arguable grounds exist by reviewing entire record).
3
26.05(g); see Cates v. State, 402 S.W.3d 250, 251 (Tex. Crim. App. 2013) (observing
that “the defendant’s financial resources and ability to pay are explicit critical
elements in the trial court's determination of the propriety of ordering reimbursement
of costs and fees [of legal services provided]” (quoting Mayer v. State, 309 S.W.3d
552, 556 (Tex. Crim. App. 2010))).
Here, the record shows that the trial court found Weber to be indigent and
appointed counsel to represent her before she was placed on deferred-adjudication
probation. The trial court again found Weber to be indigent when the State moved to
revoke her deferred-adjudication probation, and again on appeal.
Because the trial court found Weber to be indigent, she is presumed to remain
indigent absent proof of a material change in her circumstances. See TEX. CODE
CRIM. PROC. art. 26.04(p); Mayer, 309 S.W.3d at 557. Nothing in the record indicates
a change in Weber’s financial circumstances. The record also contains no
determination by the trial court that Weber could pay $900 in attorney’s fees—and
we find no factual basis in the record to support such a determination.
As a result, we conclude that the trial court erroneously assessed attorney’s
fees against Weber for court-appointed counsel. We therefore modify the judgment
to delete the $900 fee for “Attorney Fees.” See Byrd v. State, No. 01–12–00930–CR,
2013 WL 5947975, at *2 (Tex. App.—Houston [1st Dist.] Nov. 5, 2013, no pet.)
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(mem. op., not designated for publication) (modifying judgment by deleting
appointed attorney’s fees and affirming judgment as modified in Anders appeal).3
Weber’s counsel additionally maintains that we should delete a $60
“reimbursement fee” that is included in the judgment. Article 102.011 of the Texas
Code of Criminal Procedure permits a $50 fee for “executing or processing an issued
arrest warrant, capias, or capias pro fine[.]” TEX. CODE CRIM. PROC. art.
102.011(a)(2). In reviewing reimbursement costs, “the standard for upholding the
imposition of a cost under 102.011 is whether there is a basis for that cost, and not
whether sufficient evidence supports its imposition. Martinez v. State, 510 S.W.3d
206, 209 (Tex. App.—Houston [1st Dist.] 2016, no pet.).
The record shows that a capias was issued on January 27, 2022. Thus, there is
a basis in the record for $50 of the $60 fine. However, we are unable to determine
from the record whether there is a basis for the remaining $10 of the “reimbursement
costs.” As a result, we further modify the judgment to reduce the “reimbursement
costs” to $50.
3
See also Navarro v. State, No. 01–12–00415–CR, 2013 WL 2456799, at *2 (Tex.
App.—Houston [1st Dist.] June 6, 2013, no pet.) (mem. op., not designated for
publication) (same); see also Hubbard v. State, No. 02–13–00300–CR, 2014 WL
1767475, at *1 (Tex. App.—Fort Worth May 1, 2014, no pet.) (mem. op., not
designated for publication) (“We have the authority to reform a judgment in an
Anders appeal and to affirm that judgment as reformed.”).
5
As so modified, we affirm the trial court’s judgment and grant counsel’s
motion to withdraw. Attorney Perry Stevens must immediately send Weber the
required notice and file a copy of the notice with the Clerk of this Court. See TEX. R.
APP. P. 6.5(c). We dismiss any pending motions as moot.
PER CURIAM
Panel consists of Chief Justice Adams and Justices Kelly and Goodman.
Do not publish. TEX. R. APP. P. 47.2(b).
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