Bobbie Jackson Chavez, Jr. v. State ( 2020 )

Opinion filed January 16, 2020
In The
Eleventh Court of Appeals
__________
No. 11-19-00220-CR
__________
BOBBIE JACKSON CHAVEZ, JR., Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 70th District Court
Ector County, Texas
Trial Court Cause No. A-17-1333-CR
MEMORANDUM OPINION
The jury convicted Appellant, Bobbie Jackson Chavez, Jr.,1 of the second-
degree felony offense of robbery. The jury assessed punishment at confinement for
nine years and a fine of $2,500. We modify and affirm.
Appellant’s court-appointed counsel has filed in this court a motion to
withdraw. The motion is supported by a brief in which counsel professionally and
conscientiously examines the record and applicable law and concludes that the
1
We note that some of the documents in the record, including the indictment, show Appellant’s first
name to be “Bobbie” but that other documents in the record, including the judgment, show it to be “Bobby.”
appeal is frivolous and without merit. Counsel provided Appellant with a copy of
the brief, a copy of the motion to withdraw, and a copy of both the clerk’s record
and the reporter’s record. Counsel advised Appellant of his right to review the record
and file a response to counsel’s brief. Counsel also advised Appellant of his right to
file a petition for discretionary review. See TEX. R. APP. P. 68. 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); and Stafford v. State, 813 S.W.2d 503 (Tex.
Crim. App. 1991).
Appellant filed a response to counsel’s Anders brief. In his response,
Appellant asserts that he has been denied the right to effective assistance of counsel
on appeal because appellate counsel did not consult with Appellant. In addressing
an Anders brief and a 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 with counsel
that no arguable grounds for appeal exist. 2
We note, however, that the judgment contains a nonreversible error. In
the judgment, the trial court ordered Appellant to pay court costs, including a
Time Payment Fee of $25 pursuant to former Section 133.103 of the Texas
Local Government Code. See former TEX. LOC. GOV’T CODE ANN. § 133.103
2
We note that Appellant has a right to file a petition for discretionary review pursuant to TEX. R.
APP. P. 68.
2
(2004).3 We held that subsections (b) and (d) of that section were facially
unconstitutional because the collected fees were to be allocated to general revenue
and were not sufficiently related to the criminal justice system. See King v. State,
No. 11-17-00179-CR, 2019 WL 3023513, at *1, *5–6 (Tex. App.—Eastland July 11,
2019, pet. filed) (mem. op., not designated for publication). Accordingly, the trial
court erred when it assessed a Time Payment Fee under former Section 133.103,
subsections (b) and (d) of the Texas Local Government Code as a court cost. See id.
When the trial court erroneously includes fees as court costs, we should
modify the trial court’s judgment to remove the improperly assessed fees. See
Cates v. State, 402 S.W.3d 250, 252 (Tex. Crim. App. 2013). We, therefore, modify
the trial court’s judgment to delete $22.50 of the Time Payment Fee assessed as court
costs, leaving a Time Payment Fee of $2.50. See King, 2019 WL 3023513, at *5–6.
We grant counsel’s motion to withdraw; modify the judgment of the trial court
as set forth above; and, as modified, affirm the judgment of the trial court.
PER CURIAM
January 16, 2020
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Stretcher, J., and Wright, S.C.J.4
Willson, J., not participating.
3
We note that the legislature has recently repealed subsections (b) and (d) of Section 133.103;
transferred Section 133.103 from the Local Government Code to Chapter 102 of the Texas Code of Criminal
Procedure; redesignated Section 133.103 as Article 102.030; and amended the language of the statute to
delete the provisions that were previously held to be unconstitutional. See Act of May 23, 2019, 86th Leg.,
R.S., ch. 1352, §§ 2.54, 4.40(33), 5.01, 5.04, 2019 Tex. Gen. Laws ____ (codified at TEX. CODE CRIM.
PROC. ANN. art. 102.030 (West Supp. 2019)) (effective January 1, 2020). The legislature provided that the
above changes “apply only to a cost, fee, or fine on conviction for an offense committed on or after the
effective date of this Act.” Id. § 5.01. The record in this cause reflects that the date of the offense was
May 30, 2017. Therefore, the former statute, rather than the recent revisions, apply to this case.
4
Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.
3