Carlos Dawayne Robinson v. the State of Texas ( 2021 )

NUMBER 13-20-00043-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
CARLOS DAWAYNE ROBINSON, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 19th District Court
of McLennan County, Texas.
MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Benavides and Silva
Memorandum Opinion by Chief Justice Contreras
Appellant Carlos Dawayne Robinson was convicted of aggravated robbery with a
deadly weapon, a first degree felony. See TEX. PENAL CODE ANN. § 29.03(a)(2). Appellant
pleaded guilty without the benefit of a plea agreement. A jury assessed punishment at life
imprisonment. Appellant’s appointed appellate counsel has filed a brief stating that there
are no arguable grounds for reversal of the judgment, see Anders v. California, 386 U.S.
738 (1967), but alleging that certain court costs were erroneously assessed. Appellant
has filed a pro se response. We affirm the judgment as modified. 1
I. ANDERS BRIEF
In his brief, appellant’s counsel states that he has diligently reviewed the entire
record and has concluded that the “appeal presents no issues of arguable merit.” See id.;
High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel Op.] 1978). Counsel’s brief
meets the requirements of Anders as it presents a thorough, professional evaluation
showing why there are no arguable grounds for advancing an appeal. See In re
Schulman, 252 S.W.3d 403, 407 n.9 (Tex. Crim. App. 2008) (orig. proceeding) (“In Texas,
an Anders brief need not specifically advance ‘arguable’ points of error if counsel finds
none, but it must provide record references to the facts and procedural history and set
out pertinent legal authorities.”); Stafford v. State, 813 S.W.2d 503, 510 n.3 (Tex. Crim.
App. 1991).
In compliance with Kelly v. State, 436 S.W.3d 313, 319 (Tex. Crim. App. 2014),
counsel has carefully discussed why, under controlling authority, there is no reversible
error in the trial court’s judgment. Counsel has informed this Court that he has: (1) notified
appellant that he has filed an Anders brief and a motion to withdraw; (2) provided
appellant with copies of both pleadings; (3) informed appellant of his rights to file a pro se
response, to review the record preparatory to filing that response, and to seek review if
we conclude that the appeal is frivolous; and (4) supplied appellant with a copy of the
record. See Anders, 386 U.S. at 744; Kelly, 436 S.W.3d at 319–20.
1 This appeal was transferred from the Tenth Court of Appeals in Waco pursuant to a docket-
equalization order issued by the Texas Supreme Court. See TEX. GOV’T CODE ANN. § 74.001.
2
Appellant timely filed a pro se response arguing that his trial counsel provided
ineffective assistance by failing to: (1) advise him prior to his guilty plea of the State’s
evidence and witnesses; (2) advise him prior to his guilty plea that he was not eligible for
probation; (3) object to evidence of alleged prior offenses adduced by the State at the
punishment hearing; (4) challenge the State’s DNA evidence at the punishment hearing;
(5) effectively cross-examine certain witnesses at the punishment hearing; (6) raise
certain issues during closing argument at the punishment hearing; and (7) object to the
punishment jury charge on various grounds. Appellant also asserts in his response that:
(1) his guilty plea was involuntary; (2) he received an unfair punishment trial because
peremptory strikes from the jury pool were racially-motivated; (3) the evidence was
insufficient to support his guilty plea; (4) the evidence was insufficient to support a finding
that he committed prior offenses; and (5) the prosecutor erred by failing to disclose the
names of three witnesses before the plea hearing.
II. INDEPENDENT REVIEW
Upon receiving an Anders brief, we must conduct a full examination of all the
proceedings to determine whether the appeal is wholly frivolous. Penson v. Ohio, 488
U.S. 75, 80 (1988). We have reviewed the record, counsel’s brief, and appellant’s pro se
response, and we have found no arguable reversible error. See Bledsoe v. State, 178
S.W.3d 824, 827–28 (Tex. Crim. App. 2005) (“Due to the nature of Anders briefs, by
indicating in the opinion it considered the issues raised in the brief and reviewed the
record for reversible error but found none, the court of appeals met the requirements of
Texas Rule of Appellate Procedure 47.1.”); Stafford, 813 S.W.2d at 509. 2
2 We note that challenges requiring development of a record to substantiate a claim, such as
ineffective assistance of counsel, may be raised in an application for writ of habeas corpus. See TEX. CODE
3
III. MODIFICATION OF JUDGMENT
In his Anders brief, appellant’s counsel argues that some of the court costs
assessed are unlawful or premature and requests that we modify the judgment to delete
sixty dollars in costs. See TEX. R. APP. P. 43.2(b) (authorizing appellate courts to modify
the judgment and affirm as modified). Because the argument does not suggest any
reversible error in the court’s judgment, it is properly raised in counsel’s Anders brief. See
Ferguson v. State, 435 S.W.3d 291, 293 (Tex. App.—Waco 2014, no pet.) (modifying trial
court’s judgment to reflect proper offense dates where issue was raised in Anders brief);
see also Thomas v. State, No. 13-12-00283-CR, 2012 WL 6680143, at *2 (Tex. App.—
Corpus Christi–Edinburg Dec. 20, 2012, no pet.) (mem. op., not designated for
publication) (modifying trial court’s judgment to delete $500 fine from appellant’s
administrative fees where issue was raised in Anders brief). 3
The record reflects that the trial court initially signed its judgment of conviction on
January 9, 2020. Attached to the judgment was an “Order to Withdraw Funds” from
appellant’s inmate trust account stating that “[c]ourt costs, fees and or/fines and/or
restitution have been incurred in the amount of $630.” After counsel objected that
appellant was being overcharged, the trial court signed a judgment nunc pro tunc and a
second “Order to Withdraw Funds” on August 6, 2020. 4 According to an itemized bill of
CRIM. PROC. ANN. art. 11.07; Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002). An application
for writ of habeas corpus relief would “provide an opportunity to conduct a dedicated hearing to consider
the facts, circumstances, and rationale behind counsel’s actions at . . . trial.” Thompson v. State, 9 S.W.3d
808, 814–15 (Tex. Crim. App. 1999); see Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim. App. 2011)
(“This Court has repeatedly stated that claims of ineffective assistance of counsel are generally not
successful on direct appeal and are more appropriately urged in a hearing on an application for a writ of
habeas corpus.”).
3 The State has not filed a brief to assist us in evaluating this issue.
4 Neither the judgment nunc pro tunc nor the second “Order to Withdraw Funds” specified the
amount of costs or fees being assessed.
4
costs dated August 11, 2020, appellant was assessed a grand total of $340 in costs,
including $45 assessed for “VCTM45.” The bill of costs also states: “If total court costs,
reimbursement fees, fines and costs are not paid with 30 days of the Judgment, an
additional Time Payment Fee of $15.00 will be assessed pursuant to the applicable
Statutes and related case law. (CCP § 102.030).”
Counsel asserts that “VCTM45” refers to the crime victim’s compensation fund,
and he argues that assessment of this fee was improper because the fee is not currently
authorized by statute. See Aviles-Barroso v. State, 477 S.W.3d 363, 398 (Tex. App.—
Houston [14th Dist.] 2015, pet. ref’d) (“Texas Local Government Code section 133.102
indicates that the fees for crime stoppers, criminal justice planning, officer education,
compensation to victims of crime, and judicial training are not to be individually assessed
but are, instead, part of the mandatory . . . consolidated fee to be assessed as a court
cost upon a felony conviction.”). We agree. See TEX. LOC. GOV’T CODE ANN.
§ 133.102(a)(1) (providing that a person convicted of a felony shall pay $185 in
consolidated court costs); id. § 133.102(e)(8) (providing that a certain percentage of the
consolidated court costs shall be allocated for compensation to victims of crime); Aviles-
Barroso, 477 S.W.3d at 398. Accordingly, we modify the judgment to delete the $45 fee
assessed for the crime victim’s compensation fund.
Counsel also asks that we modify the judgment to delete the time payment fee.
See Act of June 2, 2003, 86th Leg. R.S., ch. 209, § 62, sec. 133.103, 2003 Tex. Gen.
Laws 979, 996–97 (amended 2019) (“A person convicted of an offense shall pay, in
addition to all other costs, a fee of $25 if the person: (1) has been convicted of a felony
or misdemeanor; and (2) pays any part of a fine, court costs, or restitution on or after the
5
31st day after the date on which a judgment is entered assessing the fine, court costs, or
restitution.”) (former TEX. LOC. GOV’T CODE ANN. § 133.103; current version at TEX. CODE
CRIM. PROC. ANN. art. 102.030). 5
Appellate courts which have considered the issue, including this Court and the
Tenth Court of Appeals, have held that ninety percent of the time payment fee under
former Texas Local Government Code § 133.103 is unconstitutional because only ten
percent of the fee is collected for a “legitimate criminal justice purpose,” while the
remainder is directed to general revenue. See Ovalle v. State, 592 S.W.3d 615, 618 (Tex.
App.—Dallas 2020) (“[I]f a statute turns the courts into tax gatherers, then the statute
impermissibly delegates to the courts a power more properly attached to the executive
branch.”), vacated on other grounds and remanded, No. PD-0127-20, 2021 WL 1938672(Tex. Crim. App. May 12, 2021); Simmons v. State, 590 S.W.3d 702, 712 (Tex. App.—
Waco 2019), vacated on other grounds and remanded, No. PD-1264-19, 2021 WL
1938758 (Tex. Crim. App. May 12, 2021); Dulin v. State, 583 S.W.3d 351, 353 (Tex.
App.—Austin 2019), vacated on other grounds and remanded, 620 S.W.3d 129 (Tex.
Crim. App. 2021); Johnson v. State, 573 S.W.3d 328, 340 (Tex. App.—Houston [14th
Dist.] 2019), vacated on other grounds and remanded, No. PD-0246-19, 2021 WL
1939984 (Tex. Crim. App. May 12, 2021); Crooks v. State, 13-20-00038-CR, 2020 WL
5 In 2019, the Texas Legislature reduced the time payment fee to $15 and transferred the statute
to the code of criminal procedure. Act of May 23, 2019, 86th Leg., R.S., ch. 1352, §§ 2.54, 4.40(33), 2019
Tex. Sess. Laws ch. 1352. The new statute provides that the entire time payment fee is “to be used for the
purpose of improving the collection of outstanding court costs, fines, reimbursement fees, or restitution or
improving the efficiency of the administration of justice in the county or municipality.” TEX. CODE CRIM. PROC.
art. 102.030(b). The changes, however, apply only to a cost, fee, or fine assessed on a conviction for an
offense committed on or after January 1, 2020. See Act of May 23, 2019, 86th Leg., R.S., ch. 1352, § 5.01,
2019 Tex. Sess. Laws ch. 1352. Because the offense in this case was committed before January 1, 2020,
the former law applies. See Ovalle v. State, 592 S.W.3d 615, 617 n.1 (Tex. App.—Dallas 2020), vacated
on other grounds and remanded, No. PD-0127-20, 2021 WL 1938672 (Tex. Crim. App. May 12, 2021).
6
6601601, at *3 (Tex. App.—Corpus Christi–Edinburg Nov. 12, 2020) (mem. op., not
designated for publication), vacated on other grounds and remanded, No. PD-1183-20,
2021 WL 1940152 (Tex. Crim. App. May 12, 2021); Townsend v. State, No. 13-18-00049-
CR, 2019 WL 6205470, at *8 (Tex. App.—Corpus Christi–Edinburg Nov. 21, 2019) (mem.
op., not designated for publication), vacated on other grounds and remanded, No. PD-
1259-19, 2021 WL 1940596 (Tex. Crim. App. May 12, 2021); King v. State, No. 11-17-
00179-CR, 2019 WL 3023513, at *5 (Tex. App.—Eastland July 11, 2019) (mem. op., not
designated for publication), vacated on other grounds and remanded, No. PD-0779-19,
2021 WL 1939561 (Tex. Crim. App. May 12, 2021).
In Dulin v. State, the Texas Court of Criminal Appeals recently held that “[t]he
pendency of an appeal stops the clock for purposes of the time payment fee.” Dulin, 620
S.W.3d at 133. Without addressing the constitutionality of the statute, the Court held that
the assessment of time payment fees in Dulin’s case was “premature, and the fees should
be struck in their entirety, without prejudice to them being assessed later if, more than 30
days after the issuance of the appellate mandate, the defendant has failed to completely
pay any fine, court costs, or restitution that he owes.” Id. In light of this ruling, the Court
vacated several previous appellate judgments which had affirmed ten percent of the fee.
See Townsend, 2021 WL 1940596, at *1; Crooks, 2021 WL 1940152, at *1; Johnson,
2021 WL 1939984, at *1; King, 2021 WL 1939561, at *1; Simmons, 2021 WL 1938758,
at *1; Ovalle, 2021 WL 1938672, at *1.
In this case, however, the record does not support counsel’s assertion that the fee
was actually assessed. As noted, neither the judgment nunc pro tunc nor the order to
withdraw attached thereto stated that any particular costs or fees were being assessed.
7
And though the bill of costs states that a time payment fee could be assessed, there is
nothing indicating that the fee was actually assessed. See TEX. CODE CRIM. PROC. ANN.
art. 102.030(a); see also Nieves-Perez v. State, No. 12-19-00389-CR, 2021 WL 1047209,
at *5 (Tex. App.—Tyler Mar. 18, 2021, pet. ref’d) (mem. op., not designated for
publication) (overruling appellant’s issue regarding constitutionality of time payment
statute where bill of costs contained identical speculative language). Moreover, the bill of
costs states that the fee, if eventually warranted, will be assessed “pursuant to the
applicable Statutes and related case law,” which presumably includes the case law
providing that ninety percent of the fee is unconstitutional. Because the record does not
show that a time payment fee was assessed, we decline counsel’s request to modify the
judgment to delete such assessment.
IV. MOTION TO WITHDRAW
In accordance with Anders, appellant’s appointed appellate counsel has filed a
motion to withdraw. See Anders, 386 U.S. at 744; see also In re Schulman, 252 S.W.3d
at 408 n.17 (citing Jeffery v. State, 903 S.W.2d 776, 779–80 (Tex. App.—Dallas 1995, no
pet.) (“If an attorney believes the appeal is frivolous, he must withdraw from representing
the appellant. To withdraw from representation, the appointed attorney must file a motion
to withdraw accompanied by a brief showing the appellate court that the appeal is
frivolous.” (citations omitted))). We grant the motion to withdraw.
We order counsel to send a copy of the opinion and judgment to appellant, and to
advise him of his right to file a petition for discretionary review, within five days of the date
of this opinion. 6 See TEX. R. APP. P. 48.4; see also In re Schulman, 252 S.W.3d at 412
6No substitute counsel will be appointed. Should appellant wish to seek further review by the Texas
Court of Criminal Appeals, he must either retain an attorney to file a petition for discretionary review or file
8
n.35; Ex parte Owens, 206 S.W.3d 670, 673 (Tex. Crim. App. 2006).
V. CONCLUSION
The trial court’s judgment is affirmed as modified herein. See TEX. R. APP. P.
43.2(b).
DORI CONTRERAS
Chief Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed on the
15th day of July, 2021.
a pro se petition for discretionary review. Any petition for discretionary review must be filed within thirty
days from the date of either this opinion or the last timely motion for rehearing that was overruled by this
Court. See TEX. R. APP. P. 68.2. Any petition for discretionary review must be filed with the clerk of the
Texas Court of Criminal Appeals, see TEX. R. APP. P. 68.3(a), and must comply with the requirements of
Rule 68.4 of the Texas Rules of Appellate Procedure. See TEX. R. APP. P. 68.4.
9