Jay Waylon Luna v. State ( 2015 )

Opinion filed November 5, 2015
In The
Eleventh Court of Appeals
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No. 11-15-00054-CR
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JAY WAYLON LUNA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 132nd District Court
Scurry County, Texas
Trial Court Cause No. 10172
MEMORANDUM OPINION
At a jury trial, Appellant, Jay Waylon Luna, entered a plea of guilty to the
charged offense of debit card abuse. The jury, as instructed by the trial court,
found Appellant guilty of the offense. The jury assessed Appellant’s punishment
at confinement for two years in a state jail facility and a fine of $5,000. The trial
court ordered Appellant to reimburse the county for court-appointed attorney’s fees
in the amount of $2,250. We modify the judgment and dismiss the appeal.
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 states that he has concluded that the
appeal is frivolous. Counsel has provided Appellant with a copy of the brief, the
motion to withdraw, and the appellate record and has advised Appellant of his right
to review the record and file a response to counsel’s brief.1 Appellant has not filed
a pro se response.
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); Stafford v. State,
813 S.W.2d 503 (Tex. Crim. App. 1991); High v. State, 573 S.W.2d 807 (Tex.
Crim. App. [Panel Op.] 1978); Currie v. State, 516 S.W.2d 684 (Tex. Crim. App.
1974); Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969); and Eaden v.
State, 161 S.W.3d 173 (Tex. App.—Eastland 2005, no pet.). In addressing an
Anders brief and 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 that the
appeal is without merit and should be dismissed. Schulman, 252 S.W.3d at 409.
We note, however, that the judgment contains a nonreversible error. The
trial court ordered Appellant to pay court-appointed attorney’s fees in the amount
of $2,250. The record reflects that the trial court had found Appellant to be
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By letter, this court granted Appellant thirty days in which to exercise his right to file a response
to counsel’s brief.
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indigent and appointed counsel to represent Appellant. Pursuant to Article 26.05(g)
of the Texas Code of Criminal Procedure, a trial court has the authority to order an
indigent defendant to pay court-appointed attorney’s fees if the trial court
determines that the defendant has financial resources that enable him to offset all
or part of the costs of the legal services provided to the defendant. TEX. CODE
CRIM. PROC. ANN. art. 26.05(g) (West Supp. 2014). However, court-appointed
attorney’s fees cannot be assessed against a defendant who has been determined to
be indigent unless there is proof and a finding by the trial court that the defendant
is no longer indigent. Cates v. State, 402 S.W.3d 250, 251–52 (Tex. Crim. App.
2013); Mayer v. State, 309 S.W.3d 552, 555–56 (Tex. Crim. App. 2010). In this
case, the record contains no such proof or finding. Therefore, the trial court erred
when it assessed $2,250 in court-appointed attorney’s fees against Appellant. This
error does not constitute reversible error, and the proper remedy is to modify the
judgment to remove the improperly assessed fees. Cates, 402 S.W.3d at 252;
Olivas v. State, No. 11-14-00075-CR, 2014 WL 4536389, at *1 (Tex. App.—
Eastland Sept. 11, 2014, no pet.) (mem. op., not designated for publication); see
Griggs v. State, No. 06-15-00047-CR, 2015 WL 5098973, at *1–2 (Tex. App.—
Texarkana Aug. 31, 2015, no pet. h.) (mem. op., not designated for publication);
Juarez v. State, No. 04-14-00370-CR, 2015 WL 3616125, at *2 (Tex. App.—San
Antonio June 10, 2015, no pet.) (mem. op., not designated for publication); Lamar
v. State, No. 07-13-00213-CR, 2014 WL 1856850, at *1 (Tex. App.—Amarillo
May 7, 2014, no pet.) (mem. op., not designated for publication); Tarver v. State,
No. 02-13-00394-CR, 2014 WL 1510105, at *1–2 (Tex. App.—Fort Worth
Apr. 17, 2014, no pet.) (mem. op., not designated for publication). We modify the
judgment of the trial court to delete the $2,250 in court-appointed attorney’s fees.
We note that counsel has the responsibility to advise Appellant that he may
file a petition for discretionary review with the clerk of the Texas Court of
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Criminal Appeals seeking review by that court. TEX. R. APP. P. 48.4 (“In criminal
cases, the attorney representing the defendant on appeal shall, within five days
after the opinion is handed down, send his client a copy of the opinion and
judgment, along with notification of the defendant’s right to file a pro se petition
for discretionary review under Rule 68.”). Likewise, this court advises Appellant
that he may file a petition for discretionary review pursuant to TEX. R. APP. P. 68.
The judgment is modified to delete the court-appointed attorney’s fees; the
motion to withdraw is granted; and the appeal is dismissed.
PER CURIAM
November 5, 2015
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.
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