Gary Wayne Tarver v. State ( 2014 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-13-00394-CR
GARY WAYNE TARVER APPELLANT
V.
THE STATE OF TEXAS STATE
----------
FROM THE 355TH DISTRICT COURT OF HOOD COUNTY
----------
MEMORANDUM OPINION1
----------
After Appellant Gary Wayne Tarver pleaded guilty to driving while
intoxicated-subsequent offense and pleaded true to enhancement paragraph one
alleged in the indictment, the jury assessed his punishment at twenty years’
1
See Tex. R. App. P. 47.4.
imprisonment and a $10,000 fine.2 See Tex. Penal Code Ann. §§ 49.04(a),
49.09(b)(2) (West Supp. 2013). The trial court sentenced him accordingly.
Tarver appealed.3
Tarver’s court-appointed appellate counsel has filed a motion to withdraw
as counsel and a brief in support of that motion. Counsel’s brief and motion meet
the requirements of Anders v. California4 by presenting a professional evaluation
of the record demonstrating why there are no arguable grounds for relief. This
court afforded Tarver the opportunity to file a brief on his own behalf, and he has
done so. The State filed a letter with this court stating that it agrees with Tarver’s
appointed counsel that the appeal is frivolous.5
2
The indictment alleged two enhancement paragraphs, but after
acknowledging to the trial court that enhancement paragraph two did not properly
allege a felony conviction, the State proceeded only on the first enhancement
paragraph.
3
Although Tarver’s notice of appeal was not timely filed, the court of
criminal appeals granted him an out-of-time appeal because appointed appellate
counsel was not timely notified of his appointment. See Ex Parte Tarver, No.
WR-78629-03, 2013 WL 3855656, at *1 (Tex. Crim. App. July 24, 2013) (not
designated for publication).
4
386 U.S. 738, 87 S. Ct. 1396 (1967).
5
Tarver subsequently filed a letter in this court, which we construe as a
motion requesting that we order the State to file a brief responding to the issues
that Tarver set forth in his pro se brief. Because the State is not required to file a
brief, we deny the motion. See, e.g., Little v. State, 246 S.W.3d 391, 398 (Tex.
App.—Amarillo 2008, no pet.) (noting that when State fails to file a brief,
appellate court should conduct independent analysis of merits of appellant’s
claims).
2
As the reviewing court, we must conduct an independent evaluation of the
record to determine whether counsel is correct in determining that the appeal is
frivolous. See Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991);
Mays v. State, 904 S.W.2d 920, 923 (Tex. App.—Fort Worth 1995, no pet.). Only
then may we grant counsel’s motion to withdraw. See Penson v. Ohio, 488 U.S.
75, 82–83, 109 S. Ct. 346, 351 (1988).
We have carefully reviewed the record, counsel’s brief, and Tarver’s pro se
brief. The record shows that Tarver was represented by an appointed attorney at
trial. The written judgment in the record shows that the trial court ordered Tarver
to pay court costs of $1,524. According to the bill of costs in the record, of the
$1,524 in court costs, $930 is for Tarver’s appointed attorney’s fees. However,
there is no evidence in the record indicating a change in Tarver’s status as an
indigent defendant.
For purposes of assessing attorney’s fees, once an accused is found to be
indigent, he is presumed to remain so throughout the proceedings absent proof
of a material change in his circumstances. See Tex. Code Crim. Proc. Ann. art.
26.04(p) (West Supp. 2013); Wiley v. State, 410 S.W.3d 313, 317 (Tex. Crim.
App. 2013); Mayer v. State, 309 S.W.3d 552, 557 (Tex. Crim. App. 2010).
Furthermore, the record must reflect some factual basis to support the
determination that the appellant was capable of paying all or some of his
attorney’s fees at the time of the judgment. See Tex. Code Crim. Proc. Ann. art.
26.05(g) (West Supp. 2013); Wiley, 410 S.W.3d at 317 (“[I]n the absence of any
3
indication in the record that [an indigent defendant’s] financial status has in fact
changed, the evidence will not support an imposition of attorney fees.”). No
objection is required to challenge the sufficiency of the evidence regarding a
defendant’s ability to pay attorney’s fees. Mayer, 309 S.W.3d at 556. When the
record does not contain a factual basis to support imposition of attorney’s fees,
the proper remedy is to delete it. Cates v. State, 402 S.W.3d 250, 251–52 (Tex.
Crim. App. 2013).
Because our review of the record reveals that there was never a finding by
the trial court that Tarver’s financial circumstances changed such that he was
able to pay all or a portion of his appointed attorney’s fees, we modify the trial
court’s judgment to reflect that the total amount of “Court Costs,” after subtracting
$930 in improperly-assessed appointed attorney’s fees, is $594. See Bray v.
State, 179 S.W.3d 725, 726 (Tex. App.—Fort Worth 2005, no pet.) (en banc)
(holding that an appellate court has the authority to reform a judgment in an
Anders appeal and to affirm that judgment as reformed); see also, e.g., McCardle
v. State, No. 07-13-00384-CR, 2014 WL 1004641, at *2 (Tex. App.—Amarillo
Mar. 11, 2014, no. pet. h.) (mem. op., not designated for publication) (modifying
judgment in Anders case to delete assessment of attorney’s fees unsupported by
record); Morgan v. State, No. 04-12-00359-CR, 2013 WL 6869009, at *1 (Tex.
App.—San Antonio Dec. 31, 2013, no. pet.) (mem. op., not designated for
publication) (same). We also modify the order to withdraw funds attached to and
4
incorporated into the judgment as Attachment A to state that the total amount of
“court costs, fees and/or fines and/or restitution” is $10,594.6
Except for these necessary modifications to the trial court’s judgment and
the order to withdraw funds, we agree with counsel that this appeal is wholly
frivolous and without merit; we find nothing else in the record that arguably might
support an appeal. See Bledsoe v. State, 178 S.W.3d 824, 827–28 (Tex. Crim.
App. 2005). Accordingly, we grant counsel’s motion to withdraw and affirm the
trial court’s judgment as modified.
PER CURIAM
PANEL: WALKER, GARDNER, and MCCOY, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: April 17, 2014
6
This figure is comprised of the $594 of remaining court costs after deleting
the appointed attorney’s fees and the $10,000 fine assessed by the jury.
5