Ronald Wayne Byrd v. State ( 2013 )

Opinion issued November 5, 2013
In The
Court of Appeals
For The
First District of Texas
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NO. 01-12-00930-CR
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RONALD WAYNE BYRD, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 149th District Court
Brazoria County, Texas
Trial Court Case No. 66,789
MEMORANDUM OPINION
Appellant, Ronald Wayne Byrd, appeals from his conviction for driving
while intoxicated, a third-degree felony as a result of appellant’s two prior DWI
convictions. See TEX. PENAL CODE ANN. §§ 49.04(a), 49.09(b)(2) (West Supp.
2012). The indictment alleged two additional enhancements for his prior
convictions for involuntary manslaughter and felony DWI, which, if true, subjected
appellant to a minimum of twenty-five years’ confinement as a habitual felony
offender. See TEX. PENAL CODE ANN. § 12.42(d) (West Supp. 2012). Appellant
entered an open plea of guilty to the charged offense and pleaded true to all
enhancement paragraphs. The trial court sentenced appellant to thirty-years’
confinement, assessed court costs, and certified appellant’s right to appeal.
Appellant filed a timely notice of appeal.
Appellant’s court-appointed appellate counsel has filed a motion to
withdraw, along with an Anders brief stating that the record presents no reversible
error and therefore the appeal is without merit and is frivolous. See Anders v.
California, 386 U.S. 738, 87 S. Ct. 1396 (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. See Anders, 386 U.S. at 744, 87 S. Ct. at 1400; see also High v. State,
573 S.W.2d 807, 812−13 (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, 87 S. Ct. at 1400; Mitchell v. State,
193 S.W.3d 153, 155 (Tex. App.—Houston [1st Dist.] 2006, no pet.).
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Counsel has also informed us that he delivered a copy of the brief to
appellant and informed him of his right to examine the appellate record and to file
a response. See In re Schulman, 252 S.W.3d 403, 408 (Tex. Crim. App. 2008).
Appellant has not filed a pro se response.
We have independently reviewed the entire record in this appeal, and we
conclude that (1) no reversible error exists in the record, (2) there are no arguable
grounds for review, and (3) therefore the appeal is frivolous. See Anders, 386 U.S.
at 744, 87 S. Ct. at 1400 (emphasizing that reviewing court―not
counsel―determines, after full examination of proceedings, whether appeal is
wholly frivolous); Garner v. State, 300 S.W.3d 763, 767 (Tex. Crim. App. 2009)
(reviewing court must determine whether arguable grounds for review exist);
Bledsoe v. State, 178 S.W.3d 824, 826−27 (Tex. Crim. App. 2005) (same);
Mitchell, 193 S.W.3d at 155 (same). Appellant may challenge our holding that
there are no arguable grounds for appeal by filing a petition for discretionary
review in the Court of Criminal Appeals. See Bledsoe, 178 S.W.3d at 827 & n.6.
We note that the trial court’s judgment includes $1500.00 in attorney’s fees.
The record shows, however, that the trial court found appellant to be indigent and
appointed trial and appellate counsel based on appellant’s indigence.
A trial court has the authority to order a defendant to repay fees for legal
services provided, if the court determines that a defendant has financial resources
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enabling him to offset, in part or in whole, the costs of the legal services provided.
TEX. CODE CRIM. PROC. ANN. art. 26.05(g) (West Supp. 2012). However, “[a]
defendant who is determined by the court to be indigent is presumed to remain
indigent for the remainder of the proceedings in the case unless a material change
in the defendant’s financial circumstances occurs.” TEX. CODE CRIM. PROC. ANN.
art. 26.04(p) (West Supp. 2012).
Here, the record does not reflect that the trial court reconsidered its
determination of indigency, that a material change in appellant’s financial
circumstances occurred, or that the trial court made a finding regarding appellant’s
ability to pay attorney’s fees. See Mayer v. State, 309 S.W.3d 552, 556–57 (Tex.
Crim. App. 2010); Navarro v. State, No. 01-12-00415-CR, 2013 WL 2456799, at
*2 (Tex. App.—Houston [1st Dist.] June 6, 2013, no pet.); Norris v. State, No. 03-
13-00059-CR, 2013 WL 3724780, at *1 (Tex. App.—Austin July 10, 2013, no
pet.). Thus, the record does not support an assessment of attorney’s fees.
Accordingly, we modify the trial court’s judgment to delete the entry of
$1500.00 in appointed attorney’s fees. We also modify the “Order to Withdraw
Funds” by deleting the attorney’s fees in the amount of $1500.00 from the sum
subject to collection. See Cerbantez v. State, No. 07-12-0434-CR, 2013 WL
1189243, at *2 (Tex. App.—Amarillo Mar. 22, 2013, no pet.) (modifying
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judgment and withholding order); Reyes v. State, 324 S.W.3d 865, 868 (Tex.
App.—Amarillo 2010, no pet.) (same).
We grant counsel’s motion to withdraw and affirm the trial court’s judgment
as modified.1 Attorney John J. Davis must immediately send the notice required by
Texas Rule of Appellate Procedure 6.5(c) and file a copy of that notice with the
Clerk of this Court. See TEX. R. APP. P. 6.5(c).
PER CURIAM
Panel consists of Justices Keyes, Higley, and Massengale.
Do not publish. TEX. R. APP. P. 47.2(b).
1
Appointed counsel still has a duty to inform appellant of the result of this appeal
and that he may, on his own, pursue discretionary review in the Court of Criminal
Appeals. See Ex parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997).
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