Lemyel Odell Price v. State ( 2014 )

IN THE
TENTH COURT OF APPEALS
No. 10-13-00403-CR
LEMYEL ODELL PRICE,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 66th District Court
Hill County, Texas
Trial Court No. 36,923
MEMORANDUM OPINION
Lemyel Odell Price, Jr. pled guilty to the offense of burglary of a habitation and
was placed on deferred adjudication community supervision. TEX. PENAL CODE ANN. §
30.02 (West 2011). Two years later, Price was adjudicated guilty and sentenced to eight
years in prison.
Price’s appellate attorney filed an Anders brief in this appeal. See Anders v.
California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967). Price was informed of his
right to submit a brief or other response on his own behalf and how to obtain a copy of
the appellate record. Price did not submit a brief or response. Counsel asserts in the
Anders brief that after diligently and carefully examining the record and after diligently
researching relevant case law and statutes, he has found that no non-frivolous issues
exist.
In reviewing an Anders appeal, we must, "after a full examination of all the
proceedings, ... decide whether the case is wholly frivolous." See Anders, 386 U.S. at 744;
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).
Arguments are frivolous when they "cannot conceivably persuade the court." Id. at 436.
An appeal is not wholly frivolous when it is based on "arguable grounds." Stafford,
813S.W.2d at 511.
Despite concluding that the appeal is frivolous, counsel presented the issue that
the trial court erred in assessing transport fees against Price because they were for
transport pursuant to a bench warrant and that such fees are not part of statutory court
costs defendants must pay whether indigent or not. See TEX. CODE CRIM. PROC. ANN.
art. 102.001(b) (West 2006) (listing only certain fees for services of peace officers to be
paid by a defendant). The State concedes error. Notwithstanding it is otherwise
presented as an Anders brief and, moreover, we have performed the remainder of the
normal due process requirements, both substantive and procedural, in Anders cases, we
Price v. State Page 2
will consider this as a brief on the merits specifically as it relates to the issue of the
appeal of erroneously assessed costs in criminal cases. See Hines v. State, Nos. 10-13-
00286-CR &10-13-00292-CR, 2014 Tex. App. LEXIS 5768, *4 (Tex. App.—Waco May 29,
2014, no pet.) (not designated for publication).
The trial court erred in assessing transport fees for the bench warrant against
Price because the fee was not authorized by the Code of Criminal Procedure. See TEX.
CODE CRIM. PROC. ANN. art. 102.001(b) (West 2006). Accordingly, we modify the trial
court’s judgment to delete the inclusion of $163.17 as transport fees owed by Price in the
judgment. Costs as modified will be $314.00.
As modified, we affirm the trial court’s judgment and dismiss counsel’s motion
to withdraw as moot. See id. *4 n. 2.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed as modified
Opinion delivered and filed September 18, 2014
Do not publish
[CR25]
Price v. State Page 3