D'Andre Jamarious Hayward v. State ( 2019 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
Nos. 07-19-00345-CR
07-19-00346-CR
07-19-00347-CR
DANDRE JAMARIOUS HAYWARD, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 54th District Court
McLennan County, Texas
Trial Court Nos. 2018-1900-C2, 2018-1901-C2, 2018-1902-C2,
Honorable David Hodges, Presiding
December 31, 2019
MEMORANDUM OPINION
Before QUINN, C.J., and PIRTLE, and DOSS, JJ.
Appellant, D’Andre Jamarious Hayward, appeals the trial court’s orders deferring,
for ten years, the adjudication of his guilt on three separate criminal charges. Those
charges are Engaging in Organized Criminal Activity, Burglary of a Habitation, and
Aggravated Assault. The decision to defer appellant’s adjudication of guilt arose from
appellant’s open pleas of guilty to each charge. He now appeals from those orders.1
Appellant’s appointed counsel filed motions to withdraw and an Anders2 brief in
each cause. Through them, he certified that, after diligently searching the appellate
record and law, the appeals were without merit. Accompanying the briefs and motions
were letters informing appellant of 1) his conclusion, 2) appellant’s right to file a pro se
response to that conclusion, and 3) appellant’s right to access the appellate record.
Counsel also attached to his letters copies of an “Appellant’s Motion for Access to
Appellate Record” for appellant’s consideration. By letter dated November 15, 2019, this
Court also notified appellant of his right to file his own responses by December 12, 2019.
Appellant filed a pro se response in which he contends that he was denied a new attorney
and challenges the voluntariness of his pleas. Neither contention presents an arguable
issue based on the record before us.
In compliance with the principles enunciated in Anders, appellate counsel
discussed potential areas for appeal, which areas included error related to the entry of
guilty pleas and the deferral of the adjudication of guilt. Counsel also provided analysis
and authority explaining why the areas mentioned provided no arguable basis for
reversal.
We conducted our own review of the appellate records pursuant to In re Schulman,
252 S.W.3d 403 (Tex. Crim. App. 2008), and Stafford v. State, 813 S.W.2d 503 (Tex.
1 Because this appeal was transferred from the Tenth Court of Appeals, we are obligated to apply
its precedent when available in the event of a conflict between the precedents of that court and this Court.
See TEX. R. APP. P. 41.3.
2 See Anders v. California, 386 U.S. 738, 744–45, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967).
2
Crim. App. 1991) (en banc), and also found no arguable error warranting reversal.
However, our consideration of the record disclosed mistakes necessitating correction.
They concern the assessment of attorneys’ fees upon appellant in each cause. In trial
court cause number 2018-1900-C2 and as reflected in the bill of costs, the sum of $400.00
for attorney’s fees was assessed. In cause number 2018-1901-C2 and as reflected in the
bill of costs, the sum of $1,712.50 in attorney’s fees was assessed. And, in cause number
2018-1902-C2, attorney’s fees in the amount of $500.00 were assessed, as reflected in
the bill of costs. Initially having been found indigent and the trial court having not found
that such status changed at the time of entering its orders deferring the adjudication of
guilt, appellant was not subject to an assessment of such fees. See Simmons v. State,
No. 07-17-00127-CR, 2019 Tex. App. LEXIS 2760, at *12–13 (Tex. App.—Amarillo Apr.
5, 2019, no pet.) (mem. op., not designated for publication) (citing TEX. CODE CRIM. PROC.
ANN. arts. 26.04(p), 26.05(g) (West Supp. 2018)).
Judgments may be modified in an Anders situation to correct a mistake when the
mistake would “not result in a reversal of appellant’s conviction.” See Ferguson v. State,
435 S.W.3d 291, 294 (Tex. App.—Waco 2014, pet. dism’d); accord Martinez v. State, No.
07-18-00229-CR, 2019 Tex. App. LEXIS 10036, at *3 (Tex. App.—Amarillo Nov. 19,
2019, no pet. h.) (mem. op., not designated for publication) (stating that “[i]n Anders
cases, appellate courts ‘have the authority to reform judgments and affirm as modified
where there is non-reversible error.’”). The assessment of attorney’s fees here is one
such mistake. Thus, the orders deferring appellant’s adjudication of guilt will be modified
to redact the assessment of such fees against appellant.
3
Accordingly, we grant appellate counsel’s motions to withdraw, redact from the
“Order of Deferred Adjudication” entered in each cause all reference to any obligation by
appellant to pay attorney’s fees, and affirm each Order as modified.3
Brian Quinn
Chief Justice
Do not publish.
3 Appellant has the right to file a petition for discretionary review with the Texas Court of Criminal
Appeals.
4