Rushel Curtis Lamar v. State

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-13-00213-CR
RUSHEL CURTIS LAMAR, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 47th District Court
Potter County, Texas
Trial Court No. 66002-A, Honorable Dan L. Schaap, Presiding
May 7, 2014
MEMORANDUM OPINION
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
Rushel Curtis Lamar, appellant, appeals his conviction for aggravated assault
with a deadly weapon. Appellant was tried by a jury, found guilty, and assessed
punishment at six years in prison. He then appealed.
Appellant’s appointed counsel filed a motion to withdraw, together with an
Anders1 brief, wherein he certified that, after diligently searching the record, he
concluded that the appeal was without merit. Along with his brief, appellate counsel
1
See Anders v. California, 386 U.S. 738, 744-45, 87 S.Ct.1396,18 L.Ed.2d 493 (1967).
filed a copy of a letter sent to appellant informing him of counsel’s belief that there was
no reversible error and of appellant’s right to file a response pro se. By letter dated
March 13, 2014, this court notified appellant of his right to file his own brief or response
by April 11, 2014, if he wished to do so. To date, no response has been filed.
In compliance with the principles enunciated in Anders, appellate counsel
discussed one potential area for appeal which was the admission of extraneous
offenses. However, counsel then proceeded to explain why the issue was without merit.
In addition, we conducted our own review of the record to assess the accuracy of
appellate counsel’s conclusion and to uncover any arguable error pursuant to In re
Shulman, 252 S.W.3d 403 (Tex. Crim. App. 2008) and Stafford v. State, 813 S.W.2d
508 (Tex. Crim. App. 1991). In doing so, we noticed that the judgment assessed court
costs in the amount of $4,409 against appellant. The bill of costs indicates that the
$4,409 sum is comprised of attorney’s fees in the amount of $4,100. However, there is
no evidence of record indicating a change in appellant’s status as an indigent. Such is
required before an indigent defendant may be assessed attorney’s fees. TEX. CODE
CRIM. PROC. ANN. art. 26.04(p) (West Supp. 2013-2014); Mayer v. State, 309 S.W.3d
552, 557 (Tex. Crim. App. 2010). Because no objection is required to challenge the
sufficiency of the evidence regarding a defendant’s ability to pay those fees, Mayer v.
State, 309 S.W.3d at 556, the proper remedy is to delete attorney’s fees from the bill of
costs and any ensuing order permitting withdrawals from appellant’s inmate account of
those costs. Cates v. State, 402 S.W.3d 250, 251-52 (Tex. Crim. App. 2013). Other
than that matter, we also uncovered no arguable issue.
2
Accordingly, the bill of costs is modified to delete the requirement that appellant
pay $4,100 in court-appointed attorney’s fees. The motion to withdraw is granted, and
the judgment is affirmed as modified.2
Brian Quinn
Chief Justice
Do not publish.
2
Appellant has the right to file a petition for discretionary review with the Court of Criminal
Appeals.
3