William Martin Swinner v. the State of Texas ( 2023 )

IN THE
TENTH COURT OF APPEALS
No. 10-23-00001-CR
WILLIAM MARTIN SWINNER,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 87th District Court
Leon County, Texas
Trial Court No. 22-0029CR
OPINION
William Swinner was found guilty by a jury of the state jail felony offense of
unauthorized use of a motor vehicle. See TEX. PENAL CODE ANN. § 31.07. Swinner pled
true to two alleged prior felony convictions, and the jury assessed his punishment at ten
years in the penitentiary.
Swinner’s appointed counsel filed a motion to withdraw and an Anders brief in
support of the motion, asserting that he has diligently reviewed the appellate record and
that, in his opinion, the appeal is frivolous. See Anders v. California, 386 U.S. 738, 87 S.Ct.
1396, 18 L.Ed.2d 493 (1967). Counsel’s brief evidences a professional evaluation of the
record for error and compliance with the other duties of appointed counsel. We conclude
that counsel has performed the duties required of appointed counsel. See id. at 744, 87
S.Ct. at 1400; High v. State, 573 S.W.2d 807, 812–13 (Tex. Crim. App. [Panel Op.] 1978); see
also Kelly v. State, 436 S.W.3d 313, 319–20 (Tex. Crim. App. 2014); In re Schulman, 252
S.W.3d 403, 407–09 (Tex. Crim. App. 2008).
In reviewing an Anders appeal, we must, “after a full examination of all the
proceedings, . . . decide whether the case is wholly frivolous.” Anders, 386 U.S. at 744, 87
S.Ct. at 1400; see Penson v. Ohio, 488 U.S. 75, 80, 109 S.Ct. 346, 349–50, 102 L.Ed.2d 300(1988); accord Stafford v. State, 813 S.W.2d 503, 509–11 (Tex. Crim. App. 1991). An appeal
is “wholly frivolous” or “without merit” when it “lacks any basis in law or fact.” McCoy
v. Court of Appeals, 486 U.S. 429, 438 n.10, 108 S.Ct. 1895, 1902 n.10, 100 L.Ed.2d 440 (1988).
Although provided the opportunity, Swinner has not filed a response to the motion to
withdraw or Anders brief. After a review of the entire record in this appeal, we have
determined the appeal to be wholly frivolous. See Bledsoe v. State, 178 S.W.3d 824, 826–28
(Tex. Crim. App. 2005).
Despite finding no reversible error in this record, counsel has identified Category
2 nonreversible error in the judgment of conviction regarding court costs and seeks
modification of the judgment. See Cummins v. State, 646 S.W.3d 605, 616 (Tex. App.—
Waco 2022, pet. ref’d) (noting that Category 2 nonreversible error is error that is
Swinner v. State Page 2
unpreserved but not subject to procedural default). Swinner requests modification of the
total court costs in the judgment and challenges the assessment of $500 for a “sheriff
service fee” and $40 for an “issue subpoena” fee. The original certified bill of costs dated
October 4, 2022, included both fees that are the subject of Swinner’s complaint and
reflected total court costs of $855. Swinner challenged the fees in his motion for new trial
but the record before us does not reflect the motion was ruled on by the trial court.
Regardless, a subsequent uncertified bill of costs dated January 11, 2023, is included in
the record and shows $25 for the “sheriff service fee.” Article 102.011(a)(2) of the Code
of Criminal Procedure provides for a reimbursement fee of $50 for a defendant convicted
of a felony to defray the cost of the services provided in the case by a peace officer for
executing or processing an issued arrest warrant, capias, or capias pro fine. See TEX. CODE
CRIM. PROC. ANN. art. 102.011(a)(2). Because the fee assessed in the certified bill of costs
exceeds $50, we will modify the bill of costs to reflect a $50 “sheriff service fee.”
Swinner next challenges the $40 subpoena issuance fee. Section 51.318(b)(1) of the
Government Code authorizes the clerk to collect an $8 fee for issuing a subpoena in
criminal cases. TEX. GOV’T CODE ANN. § 51.318(b)(1); see In re Ingram, 575 S.W.3d 367, 369
(Tex. Crim. App. 2019) (Yeary, J., concurring); see also Ballard v. State, No. 08-21-00180-CR,
2022 WL 2965978, at *2 (Tex. App.—El Paso July 27, 2022, no pet.) (not designated for
publication). Section 51.318(c) provides that “[t]he fee is the obligation of the party to the
suit or action initiating the request.” TEX. GOV’T CODE ANN. § 51.318(c). In this case, there
Swinner v. State Page 3
is no record that Swinner applied for issuance of a subpoena. Therefore, we modify the
certified bill of costs by deleting the $40 subpoena issuance fee. See Ballard, 2022 WL
2965978, at *2.
We modify the judgment to reflect total court costs in the amount of $365 and
affirm the judgment as modified. Furthermore, we grant counsel’s motion to withdraw
from representation of Swinner in this appeal.
MATT JOHNSON
Justice
Before Chief Justice Gray,
Justice Johnson, and
Justice Smith
(Chief Justice Gray concurring)
Affirmed as modified
Opinion delivered and filed December 14, 2023
Publish
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