Dovie Jennings, III v. the State of Texas ( 2024 )

In the
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-23-00155-CR
DOVIE JENNINGS, III, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 123rd District Court
Panola County, Texas
Trial Court No. 2001-C-063
Before Stevens, C.J., van Cleef and Rambin, JJ.
Memorandum Opinion by Justice Rambin
MEMORANDUM OPINION
Pursuant to a plea bargain, Dovie Jennings, III, pled guilty to assault of a public servant.
See TEX. PENAL CODE ANN. § 22.01(b)(1) (Supp.). The trial court found Jennings guilty,
sentenced him to two years’ confinement in state jail, suspended his sentence, and placed him on
community supervision for two years. The trial court also assessed a fine of $1,000.00, court
costs of $325.00, and attorney fees of $450.00. The trial court later extended the time for
Jennings to complete two of the conditions of community supervision. Ultimately, the trial court
revoked Jennings’s community supervision after he pled true to the State’s allegations that he
violated the terms of his community supervision in four ways. After revoking Jennings’s
community supervision, the trial court sentenced him to two years’ confinement in state jail.
Jennings appeals.
Jennings’s attorney filed a brief stating that she reviewed the record and found no
genuinely arguable issues that could be raised on appeal. The brief sets out the procedural
history of the case and summarizes the evidence elicited during the trial court proceedings.
Since counsel provided a professional evaluation of the record demonstrating why there are no
arguable grounds to be advanced, that evaluation meets the requirements of Anders v. California.
Anders v. California, 386 U.S. 738, 743–44 (1967); In re Schulman, 252 S.W.3d 403, 406 (Tex.
Crim. App. 2008) (orig. proceeding); Stafford v. State, 813 S.W.2d 503, 509–10 (Tex. Crim.
App. 1991); High v. State, 573 S.W.2d 807, 812–13 (Tex. Crim. App. [Panel Op.] 1978).
Counsel also filed a motion with this Court seeking to withdraw as counsel in this appeal.
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On January 16, 2024, counsel mailed copies of the following to Jennings: (1) counsel’s
Anders brief, (2) counsel’s motion to withdraw, and (3) a motion for pro se access to the
appellate record lacking only Jennings’s signature and the date. Counsel also advised Jennings
that he had until January 31 to mail the motion for pro se access back to this Court. On
February 12, 2024, this Court notified Jennings that a pro se response was due on or before
March 4, 2024. We received neither a pro se response from Jennings nor a motion requesting an
extension of time in which to file such a response.
We have reviewed the entire appellate record and have independently determined that no
reversible error exists. See Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim. App. 2005).
However, non-reversible error exists, and we will consider that error below.
I. Correct Jennings’s Name in the Judgment
We find non-reversible error in the judgment and correct Jennings’s name in the
judgment. “[A]ppellate courts are authorized to reform judgments and affirm as modified in
Anders cases involving non-reversible error.” Mitchell v. State, 653 S.W.3d 295, 297 (Tex.
App.—Texarkana 2022, no pet.) (comprehensively discussing appellate cases that have modified
judgments in Anders cases).
In the “Judgment Revoking Community Supervision,” Jennings’s name is stated to be
“Dovie Jennings.” Jennings testified his name is “Dovie Jennings, III.” Thus, we modify the
“Judgment Revoking Community Supervision” and change Jennings’s name from “Dovie
Jennings” to “Dovie Jennings, III.”
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II. Change Bill of Costs
We have also reviewed the certified bill of costs. Jennings was imposed a time payment
fee totaling $25.00 and another time payment fee “[i]f total court costs, reimbursement fees, and
fines [were] not paid within 30 days of the Judgment.” The Texas Court of Criminal Appeals
has recently concluded that time payment fees like those imposed here “must indeed be struck
for being prematurely assessed because a defendant’s appeal suspends the duty to pay court costs
and therefore suspends the running of the clock for the purposes of the time payment fee.” Dulin
v. State, 620 S.W.3d 129, 129 (Tex. Crim. App. 2021). “As a consequence, even now,
assessment of the time payment fee in this case would be premature because appellate
proceedings are still pending.” Id.Pursuant to Dulin, we strike the time payment fee “in [its] entirety, without prejudice to
[it] 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” owed. Id. at 133.
We modify the bill of costs by deleting the following three entries:
Time Payment Fee - County 1 2.50
Time Payment Fee - County 2 10.00
Time Payment Fee - State 12.50
We also modify the bill of cost by deleting the following: “If total court costs, reimbursement
fees, and fines are not paid within 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).”
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We have reviewed the other costs. “Only statutorily authorized court costs may be
assessed against a criminal defendant.” Johnson v. State, 423 S.W.3d 385, 389 (Tex. Crim. App.
2014) (citing TEX. CODE CRIM. PROC. ANN. art. 103.002). On appeal, “we review the
assessment of court costs . . . to determine if there is a basis for the cost.” Id. at 390. Based
upon that review, we delete the “Judicial and Court Personnel Training Fee” of $2.00 because
that fee was applicable only to civil cases at the time it was in effect. See Act of May 29, 2021,
87th Leg., R.S., ch. 472, § 5.01(c)(14), 2021 Tex. Gen. Laws 934, 950 (effective 2022)
(repealing TEX. GOV’T CODE ANN. § 51.971). We also reduce the “Records Management and
Preservation Fee - County” from $40.00 to $25.00. See Act of May 23, 2019, 86th Leg., R.S.,
ch. 1352, § 1.19(3), 2019 Tex. Gen. Laws 3981, 3992 (effective 2020) (repealing TEX. CODE
CRIM. PROC. ANN. art. 102.005(f)).
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As modified, we affirm the trial court’s judgment.1
Jeff Rambin
Justice
Date Submitted: March 4, 2024
Date Decided: April 3, 2024
Do Not Publish
1
Since we agree that this case presents no reversible error, we also, in accordance with Anders, grant counsel’s
request to withdraw from further representation of appellant in this case. See Anders, 386 U.S. at 744. No substitute
counsel will be appointed. Should appellant desire to seek further review of this case by the Texas Court of
Criminal Appeals, he must either retain an attorney to file a petition for discretionary review or file a pro se petition
for discretionary review. Any petition for discretionary review (1) must be filed within thirty days from either the
date of this opinion or the date on which the last timely motion for rehearing was overruled by this Court, see TEX.
R. APP. P. 68.2, (2) must be filed with the clerk of the Texas Court of Criminal Appeals, see TEX. R. APP. P. 68.3,
and (3) should comply with the requirements of Rule 68.4 of the Texas Rules of Appellate Procedure, see TEX. R.
APP. P. 68.4.
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