Michael Lynn Walls v. State

IN THE
TENTH COURT OF APPEALS
No. 10-12-00347-CR
MICHAEL LYNN WALLS,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 220th District Court
Hamilton County, Texas
Trial Court No. CR-07586
MEMORANDUM OPINION
Appellant Michael Lynn Walls pleaded guilty to possession of less than one
gram of methamphetamine and stipulated and pleaded true to enhancement
allegations. Under a plea agreement, the trial court sentenced Appellant to ten years in
prison and assessed a $1,000 fine, court costs, and $500 for court-appointed attorney’s
fees. The original judgment, signed on July 29, 2010, assessed the $1,000 fine, $314 in
court costs, $140 for restitution, and $500 for court-appointed attorney’s fees.
On May 16, 2012, the trial court signed an order to withdraw funds that directed
the Texas Department of Criminal Justice to withdraw a percentage of funds from
Appellant’s inmate trust account to pay the assessed “court costs, fees and/or fines
and/or restitution.” Appellant filed a pro se motion for entry of judgment nunc pro
tunc requesting deletion of the $1,000 fine and the $500 for court-appointed attorney’s
fees. Appellant acknowledged previous correspondence with the trial court indicating
that the trial court would waive the $500 assessment for court-appointed attorney’s fees
because of Appellant’s indigence, and Appellant asserted that the $1,000 fine was
improper because it was not orally pronounced at the imposition of sentence. The
reporter’s record from the plea hearing reflects that the trial court did pronounce the
$1,000 fine at the time of sentencing.
The trial court entered a second nunc pro tunc judgment1 that deleted only the
$500 court-appointed attorney’s fees; it did not delete the $1,000 fine. Appellant filed a
pro se notice of appeal of the second nunc pro tunc judgment, and he was subsequently
appointed counsel in this appeal by the trial court.
A nunc pro tunc judgment is an appealable order, but the appeal is limited to the
propriety of the nunc pro tunc judgment, and we do not have authority to review the
underlying conviction or the plea bargain’s validity. Blanton v. State, 369 S.W.3d 894,
900, 904 (Tex. Crim. App. 2012).
Appellant’s appointed appellate counsel has filed a motion to withdraw and an
Anders brief, asserting that he has diligently reviewed the appellate record and that, in
1
A nunc pro tunc judgment was entered a month after the original judgment, but it is not germane to this
appeal.
Walls v. State Page 2
his opinion, the appeal is frivolous. See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396,
18 L. Ed. 2d 493 (1967). Although informed of his right to do so, Appellant did not file a
pro se response to the Anders brief.
In an Anders case, we must, “after a full examination of all the proceedings, []
decide whether the case is wholly frivolous.” Id. at 744, 87 S.Ct. at 1400; 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, 439 n.10, 108 S. Ct. 1895, 1902 n.10, 100 L. Ed. 2d 440 (1988).2
We have conducted an independent review of the record, and because we find
this appeal to be wholly frivolous, we affirm the judgment. We grant appointed
counsel’s motion to withdraw from representation of Appellant. Notwithstanding this
grant, appointed counsel must send Appellant a copy of our decision, notify him of his
right to file a pro se petition for discretionary review, and send this Court a letter
certifying counsel’s compliance with Texas Rule of Appellate Procedure 48.4. TEX. R.
APP. P. 48.4; see also Ex parte Owens, 206 S.W.3d 670, 673-74 (Tex. Crim. App. 2006).
REX D. DAVIS
Justice
2
We do not address whether the trial court’s judgment nunc pro tunc was more favorable than the
judgment the State was entitled to enforce or whether the trial court had the authority or jurisdiction to
modify the judgment in the manner that it did.
Walls v. State Page 3
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed May 9, 2013
Do not publish
[CR25]
Walls v. State Page 4