Michael Anthony Bertrand v. the State of Texas ( 2023 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-23-00046-CR
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MICHAEL ANTHONY BERTRAND, Appellant
V.
THE STATE OF TEXAS, Appellee
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On Appeal from the 128th District Court
Orange County, Texas
Trial Cause No. A220433-R
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MEMORANDUM OPINION
In an open plea, Appellant Michael Anthony Bertrand pled guilty to the first-
degree felony offense of continuous sexual abuse of a child. See Tex. Penal Code
Ann. § 21.02(b). The trial court sentenced him to sixty-six years of confinement. See
id. § 21.02(h) (providing punishment range of twenty-five to nine-nine years).
Bertrand’s appellate counsel filed an Anders brief presenting counsel’s
professional evaluation of the record and concludes that the appeal is
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frivolous. See Anders v. California, 386 U.S. 738 (1967); High v. State, 573 S.W.2d
807 (Tex. Crim. App. 1978). After Bertrand’s counsel filed his brief, we granted an
extension of time for Bertrand to file a pro se response. Bertrand has not filed a
response.
The Court of Criminal Appeals has held that we need not address the merits
of issues raised in an Anders brief. Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex.
Crim. App. 2005). Rather, an appellate court may 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.”
Id.Upon receiving an Anders brief, a court must conduct a full examination of
the record to determine whether the appeal is wholly frivolous. Penson v. Ohio, 488
U.S. 75, 80 (1988) (citing Anders, 386 U.S. at 744). We have reviewed the entire
record and counsel’s brief and have found no reversible error, and we conclude the
appeal is wholly frivolous. See Bledsoe, 178 S.W.3d at 827–28. Therefore, we find
it unnecessary to order appointment of new counsel to re-brief the appeal. Cf.
Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991).
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In our review of the record, however, we note the judgment reflected that
Bertrand was required to pay reimbursement fees of $1,800 for court-appointed
counsel. The record establishes that Bertrand was found to be indigent. Under Texas
Code of Criminal Procedure article 26.05(g), a trial court shall order the
reimbursement of court-appointed attorney fees only if “the judge determines that a
defendant has financial resources that enable the defendant to offset in part or in
whole the costs of the legal services provided to the defendant . . . , including any
expenses and costs[.]” Tex. Code Crim. Proc. Ann. art. 26.05(g).
The record does not show the trial court ever determined that Bertrand had the
financial resources or ability to pay the appointed attorney’s fees, thus the trial court
erred by assessing them. See Cates v. State, 402 S.W.3d 250, 252 (Tex. Crim. App.
2013) (concluding judgment should be reformed to remove assessment of attorney’s
fees because there was no finding in the record that an indigent defendant was able
to repay the costs of court-appointed counsel). Since the record does not support the
award of $1,800.00 for the reimbursement of attorney’s fees, we modify the
judgment by deleting the reimbursement fees award of $1,865.00 and replace it with
$65.00. See id.; see also Bray v. State, 179 S.W.3d 725, 726 (Tex. App.—Fort Worth
2005, no pet.) (holding that an appellate court has the authority to modify the
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judgment in an Anders case and to affirm the judgment as modified). We affirm the
trial court’s judgment as modified.
AFFIRMED AS MODIFIED.
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W. SCOTT GOLEMON
Chief Justice
Submitted on August 11, 2023
Opinion Delivered August 23, 2023
Do Not Publish
Before Golemon, C.J., Horton and Johnson, JJ.
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