Misty Rae Bailey v. the State of Texas ( 2021 )

Opinion filed July 8, 2021
In The
Eleventh Court of Appeals
No. 11-18-00226-CR
MISTY RAE BAILEY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 161st District Court
Ector County, Texas
Trial Court Cause No. B-17-0373-CR
MEMORANDUM OPINION ON REMAND
The jury convicted Appellant, Misty Rae Bailey, of the offense of aggravated
assault of a family member with a deadly weapon and assessed her punishment at
confinement for two years and a fine of $5,000. We modify the trial court’s
judgment to delete the Time Payment Fee assessed as a court cost and, as modified,
affirm the trial court’s judgment.
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 there are
no arguable issues to present on appeal. 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 her right to review the
record and file a response to counsel’s brief. Counsel also advised Appellant of her
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 has not filed a response to counsel’s Anders brief. In addressing an
Anders brief, 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.1
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. In light of the recent opinion of the Court of Criminal Appeals
in Dulin, we conclude that the time payment fee must be struck in its entirety as
1
We note that Appellant has a right to file a petition for discretionary review pursuant to TEX. R.
APP. P. 68.
2
prematurely assessed. See Dulin v. State, 620 S.W.3d 129, 133 & n.29 (Tex. Crim.
App. 2021). 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).
Accordingly, we modify the trial court’s judgment and the bill of cost to delete
the time payment fee of $25, without prejudice to a time payment fee being assessed
later “if, more than 30 days after the issuance of the appellate mandate, [Appellant]
has failed to completely pay any fine, court costs, or restitution that [s]he owes.” See
Dulin, 620 S.W.3d at 133.
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
July 8, 2021
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.
3