Alfredo Gonzalez v. State

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-17-00373-CR
___________________________
ALFREDO GONZALEZ, Appellant
V.
THE STATE OF TEXAS
On Appeal from the 355th District Court
Hood County, Texas
Trial Court No. CR13504
Before Birdwell, Kerr, and Pittman, JJ.
Per Curiam Memorandum Opinion
MEMORANDUM OPINION
Alfredo Gonzalez appeals two jury convictions and sentences on a two-count
indictment for offenses occurring on the same day: (1) a conviction and sixty-year
sentence for first-degree felony possession of four or more, but less than two
hundred, grams of methamphetamine with the intent to deliver, see Tex. Health &
Safety Code Ann. §§ 481.102(6), 481.112(a), (d), and (2) a conviction and ten-year
sentence for third-degree felony unlawful possession of a firearm by a felon, see Tex.
Penal Code Ann. § 46.04. We affirm the firearm-possession judgment, modify the
court costs and restitution assessed in the methamphetamine-possession judgment
(and incorporated funds withdrawal order), and affirm that judgment as modified.
Brief Factual Background
A Hood County sheriff’s deputy pulled over a car1 in which Gonzalez was
riding as the only backseat passenger. Gonzalez was sitting directly behind the front
passenger. After asking the driver and passengers to exit the car and patting down the
driver and Gonzalez, the deputy found a small, personal-use baggie of
methamphetamine in Gonzalez’s pocket. He then placed Gonzalez in his patrol car’s
backseat.
The deputy and two other officers searched the car because the inside smelled
like marijuana. They found a large package of uncut methamphetamine––in a quantity
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The car’s registration had expired in 2015. The deputy also discovered that the
driver had a suspended license.
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not consistent with personal use––underneath the front passenger’s seat and a loaded
shotgun on the backseat next to where Gonzalez had been sitting. The search also
uncovered shotgun ammunition in the backseat as well as several digital scales in the
car.
While the deputies were searching the car, Gonzalez––although handcuffed––
was able to pull his cell phone out of his pants pocket to talk to his mother. He
warned her not to say anything, let her know he was under arrest, and then asked her
to bail him out. After the deputy placed the front seat passenger in the car with
Gonzalez and walked away, Gonzalez asked her how the driver could not have told
them about the registration, and she countered, “How could you not take the blame
for your own stuff?” Gonzalez asked the passenger what the police had told her, and
she answered that they had told her that Gonzalez had put the drugs under her seat.
Because Gonzalez had been previously convicted in Taylor County of state-jail-
felony marijuana possession, the State charged him with unlawful possession of the
shotgun by a felon as well as possession of more than four, but less than two
hundred, grams of methamphetamine with the intent to deliver. Gonzalez testified at
his trial and admitted that he had covered up the gun with a pillow when the deputy
pulled the car over, but he claimed he had just then discovered the gun’s presence
because he had been asleep in the car. He also admitted to possessing the
methamphetamine in his pocket, but he denied knowing anything about the
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methamphetamine found under the front seat. A jury convicted him of both charged
offenses and assessed his punishment for each.
Anders Law
Gonzalez’s appointed appellate counsel has filed a motion to withdraw and a
brief under Anders v. California, representing that this case presents no nonfrivolous
grounds for appeal. 386 U.S. 738, 744–45, 87 S. Ct. 1396, 1400 (1967). Counsel’s brief
and motion meet the requirements of Anders by presenting a professional evaluation
of the record and demonstrating why there are no arguable grounds for relief. See id.;
In re Schulman, 252 S.W.3d 403, 406–12 (Tex. Crim. App. 2008) (orig. proceeding).
Counsel also complied with the requirements set forth in Kelly v. State, 436 S.W.3d
313, 319–20 (Tex. Crim. App. 2014). Gonzalez filed a pro se response to counsel’s
brief, but the State has not filed a brief.
Once an appellant’s court-appointed attorney files a motion to withdraw on the
ground that an appeal is frivolous and fulfills the requirements of Anders, we must
independently examine the record. See Stafford v. State, 813 S.W.2d 503, 511 (Tex.
Crim. App. 1991). Only then may we grant counsel’s motion to withdraw. See Penson v.
Ohio, 488 U.S. 75, 82–83, 109 S. Ct. 346, 351 (1988).
Record Review
We have carefully reviewed the record, counsel’s brief, and appellant’s pro se
response. Our independent review of the record reveals that although the
methamphetamine-possession judgment includes an award of $180 in restitution to
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the Department of Public Safety for the laboratory testing of the methamphetamine,
the trial judge did not verbally pronounce the restitution award on the record, nor is
there any evidence supporting the awarded amount. Accordingly, we modify the
methamphetamine-possession judgment to delete the restitution award.2 See Taylor v.
State, 131 S.W.3d 497, 500 (Tex. Crim. App. 2004) (“When there is a conflict between
the oral pronouncement of sentence and the sentence in the written judgment, the
oral pronouncement controls.”); see also Aguilar v. State, 279 S.W.3d 350, 353 (Tex.
App.––Austin 2007, no pet.) (“A trial court can also order a defendant to pay lab fees,
but only as a condition of community supervision.”). We likewise delete the $12
restitution installment fee from the methamphetamine-possession judgment3 and
accompanying bill of costs. See Tex. Code Crim. Proc. Ann. art. 42.037(g)(1)
(authorizing assessment of $12 fee if trial court orders restitution to be paid in
installments).
The bill of costs also includes a capias warrant fee of $50. The statute
governing fees for services of peace officers requires a defendant convicted of a
felony to pay $5 when a peace officer arrests him without a warrant and $50 when a
peace officer executes or processes an issued arrest warrant or capias. See id. art.
Although the original bill of costs included the $180 in restitution, we received
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an amended bill of costs which deleted that amount.
The methamphetamine-possession judgment assessed $516 in costs, but the
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firearm-possession judgment did not assess any costs.
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102.011(a)(1), (2). Deputies arrested Gonzalez without a warrant as the result of a
traffic stop, and no capias appears in the record for any subsequent arrest. Applying
the governing fee statute to these facts, we hold that the bill of costs should have
assessed only a $5 fee for the arrest without a warrant. We thus also modify the
methamphetamine-possession judgment and bill of costs to delete $45 from the total
court costs assessed. See Bray v. State, 179 S.W.3d 725, 726 (Tex. App.—Fort Worth
2005, no pet.); see also Barefield v. State, No. 02-14-00336-CR, 2016 WL 551890, at *1
(Tex. App.—Fort Worth Feb. 11, 2016, pet. ref’d) (mem. op., not designated for
publication) (deleting from judgment a $50 arrest fee that was not supported by
record).
Finally, the record does not support the $30 fee––listed in the bill of costs and
included in the methamphetamine-possession judgment––for conveying a witness to
court pursuant to an out-of-county order. The record does not contain an officer’s
sworn statement of judge-approved expenses. See Tex. Code Crim. Proc. Ann. art.
102.011(c) (requiring both to justify the imposition of this fee). We therefore modify
the methamphetamine-possession judgment and bill of costs to delete that $30 fee.
In summary, we modify the methamphetamine-possession judgment and bill of
costs to delete $87 so that the total costs assessed are $429. We likewise modify the
order of withdrawal of funds incorporated into that judgment by reference. See Reed v.
State, No. 02-17-00199-CR, 2018 WL 6844132, at *1 (Tex. App.—Fort Worth Dec.
31, 2018, no pet.) (mem. op., not designated for publication) (per curiam); cf. Bone v.
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State, No. 02-15-00452-CR, 2016 WL 7240603, at *2 (Tex. App.—Fort Worth Dec.
15, 2016, no pet.) (mem. op., not designated for publication) (modifying bill of costs
and order to withdraw funds to delete fees not supported by record).
Conclusion
Except for the restitution- and cost-assessment errors described above, we
agree with counsel that this appeal is wholly frivolous and without merit; we find
nothing in the record that arguably might support an 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 (1) grant counsel’s motion to withdraw,
(2) affirm the firearm-possession judgment, (3) modify the methamphetamine-
possession judgment and incorporated order to withdraw funds to delete the $180
restitution award, $12 restitution installment fee, $30 witness conveyance fee, and $45
of the arrest fee, (4) affirm the methamphetamine-possession judgment as modified,
and (5) modify the amended bill of costs in the same manner (except for the already-
deleted restitution), so that it assesses only $429 in total court costs.
Per Curiam
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: February 28, 2019
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