Nathaniel Bradley v. the State of Texas ( 2023 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-22-00232-CR
___________________________
NATHANIEL BRADLEY, Appellant
V.
THE STATE OF TEXAS
On Appeal from the 16th District Court
Denton County, Texas
Trial Court No. F19-2488-16
Before Bassel, Womack, and Wallach, JJ.
Memorandum Opinion by Justice Womack
MEMORANDUM OPINION
Appellant Nathaniel Bradley, pursuant to a plea bargain, pled guilty to the
felony offense of burglary of a habitation, see Tex. Penal Code Ann. § 30.02, and was
placed on eight years’ deferred adjudication community supervision. In June 2022,
the State filed a motion to proceed with adjudication of guilt in which it alleged that
Bradley had committed numerous violations of the terms of his community
supervision. At the revocation hearing, Bradley pled “true” to violating the terms of
his community supervision,1 and the trial court adjudicated him guilty. During the
punishment phase of the hearing, the State called one witness—Bradley’s parole
officer—and Bradley called two witnesses—the mother of Bradley’s children and
Bradley himself. After considering the witnesses’ testimony, the presentence
investigation report, and the contents of the court’s file, the trial court sentenced
Bradley to eight years’ incarceration. This appeal followed.
On appeal, Bradley’s court-appointed appellate counsel has filed a motion to
withdraw as counsel and a brief reflecting that counsel has determined, after
examining the appellate record, that no arguable grounds for appeal exist. See Anders
v. California, 386 U.S. 738, 744–45, 87 S. Ct. 1396, 1400 (1967). Counsel’s brief and
motion meet the requirements of Anders, which requires presenting a professional
1
At the revocation hearing, the State abandoned the first three alleged
violations set forth in its motion to proceed with adjudication of guilt. Bradley pled
“true” to the remaining fourteen alleged violations.
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evaluation of the entire record in the case demonstrating why there are no arguable
grounds for relief. Id., 87 S. Ct. at 1400. We have independently examined the
record, as is our duty upon the filing of an Anders brief. See Stafford v. State,
813 S.W.2d 503, 511 (Tex. Crim. App. 1991); see also Penson v. Ohio, 488 U.S. 75, 82–83,
109 S. Ct. 346, 351 (1988). Although provided the opportunity to seek a copy of the
appellate record and file a pro se response, Bradley declined to do so. Likewise, the
State did not file a response to the Anders brief.
After carefully reviewing the record and counsel’s brief, we have determined
that the $500 fine reflected in the judgment should be deleted. As counsel’s brief
correctly points out, the trial court’s oral pronouncement at the revocation hearing
controls. See Taylor v. State, 131 S.W.3d 497, 500–02 (Tex. Crim. App. 2004). Because
the trial court did not orally assess a fine as part of Bradley’s sentence when
adjudicating guilt at the revocation hearing, we modify the judgment to delete the
$500 fine. See id. at 502.
Similarly, we have determined that the $15 “time payment fee” reflected in the
bill of costs is premature and should likewise be deleted. See Tex. Code Crim. Proc.
Ann. art. 102.030(a). The Court of Criminal Appeals recently held that “the time
payment fee was designed to be triggered by the finality of the judgment” and that
“[t]he pendency of an appeal stops the clock for purposes of the time payment fee.”
Dulin v. State, 620 S.W.3d 129, 133 (Tex. Crim. App. 2021). Because Bradley perfected
his appeal prior to the thirty-first day following the entry of the judgment, the
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assessment of the time payment fee was premature.2 See Guevara v. State,
No. 02-21-00069-CR, 2022 WL 1042919, at *4 (Tex. App.—Fort Worth Apr. 7, 2022,
no pet.) (mem. op., not designated for publication). Thus, we strike the time payment
fee in its entirety, without prejudice to its being assessed later if, more than 30 days
after the issuance of the appellate mandate, Bradley has failed to completely pay any
fine, court costs, or restitution that he owes. See Dulin, 620 S.W.3d at 133.
Except for the modifications to the judgment discussed above, we agree with
counsel that this appeal is wholly frivolous and without merit. Our independent
review of the record reveals nothing further that might arguably support the appeal.
See Bledsoe v. State, 178 S.W.3d 824, 827–28 (Tex. Crim. App. 2005); see also Meza v.
State, 206 S.W.3d 684, 685 n.6 (Tex. Crim. App. 2006). Accordingly, we grant
counsel’s motion to withdraw, modify the trial court’s judgment to remove the $500
fine, strike the $15 time payment fee from the bill of costs (without prejudice to its
being assessed later), and affirm the judgment as modified. See Tex. R. App.
P. 43.2(b); Bray v. State, 179 S.W.3d 725, 729 (Tex. App.—Fort Worth 2005, no pet.).
2
To the extent that the time payment fee was levied because Bradley failed to
timely pay certain fines, fees, or other court costs assessed in the order deferring
adjudication, this was improper because such an order is not a “judgment.” See Turner
v. State, No. 05-19-01493-CR, 2021 WL 3083501, at *2 (Tex. App.—Dallas July 21,
2021, no pet.) (mem. op. on remand, not designated for publication); see also Tex.
Code Crim. Proc. Ann. art. 102.030(a) (providing that a person must pay a time
payment fee if he “pays any part of a fine [or] court costs . . . on or after the 31st day
after the date on which a judgment is entered assessing the fine [or] court costs”
(emphasis added)).
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/s/ Dana Womack
Dana Womack
Justice
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: March 23, 2023
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