Darrell Jan Porter v. the State of Texas ( 2021 )

Opinion filed July 8, 2021
In The
Eleventh Court of Appeals
___________
No. 11-19-00255-CR
___________
DARRELL JAN PORTER, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 244th District Court
Ector County, Texas
Trial Court Cause No. C-18-1229-CR
MEMORANDUM OPINION ON REMAND
Appellant, Darrell Jan Porter, waived his right to a jury and entered an open
plea of guilty to the third-degree felony offense of assault family violence. Appellant
also pleaded true to an enhancement allegation. The trial court found Appellant
guilty, found the enhancement allegation to be true, and assessed Appellant’s
punishment at confinement for fifteen years. We modify the trial court’s judgment
and affirm as modified.
Appellant’s court-appointed counsel has filed 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 this appeal is without
merit. Counsel has provided Appellant with a copy of the brief, a copy of the motion
to withdraw, a copy of the clerk’s record and the reporter’s record, and an
explanatory letter. 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 in order to seek review by the Texas Court of
Criminal Appeals. 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. 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
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).
1
We note that Appellant has a right to file a petition for discretionary review pursuant to Rule 68
of the Texas Rules of Appellate Procedure.
2
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 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