Gabriel Mendoza v. the State of Texas ( 2021 )

Opinion filed July 8, 2021
In The
Eleventh Court of Appeals
___________
No. 11-19-00210-CR
___________
GABRIEL MENDOZA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 161st District Court
Ector County, Texas
Trial Court Cause No. B-19-0006-CR
MEMORANDUM OPINION ON REMAND
A jury convicted Appellant, Gabriel Mendoza, of continuous sexual abuse of
a child and assessed his punishment at imprisonment for life. The trial court
sentenced Appellant accordingly. 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
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
records 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 subsequently filed a response to counsel’s Anders brief in which he
asserts that another individual sexually abused the victim and that his trial counsel
failed to present a defense. We have reviewed Appellant’s response. 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. 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 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 out 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.,
Williams, J., and Wright, S.C.J.2
Trotter, J., not participating.
2
Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.
3