David Wade Hubbard v. State

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-13-00300-CR
DAVID WADE HUBBARD APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 355TH DISTRICT COURT OF HOOD COUNTY
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MEMORANDUM OPINION1
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In exchange for pleading guilty to indecency with a child by contact,
Appellant David Wade Hubbard received ten years’ deferred adjudication
community supervision and a $5,000 fine. After the State filed a motion to
proceed with adjudication of guilt and the trial court found that Hubbard had
violated the terms and conditions of his deferred adjudication community
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See Tex. R. App. P. 47.4.
supervision, the trial court adjudicated Hubbard’s guilt and sentenced him to
twenty years’ confinement. This appeal followed.
Hubbard’s court-appointed appellate counsel has filed a motion to
withdraw as counsel and a brief in support of that motion. Counsel’s brief and
motion meet the requirements of Anders v. California by presenting a
professional evaluation of the record demonstrating why there are no arguable
grounds for relief. 386 U.S. 738, 87 S. Ct. 1396 (1967). Hubbard had the
opportunity to file a pro se brief but did not do so; the State has not filed a brief.
Once an appellant’s court-appointed attorney files a motion to withdraw on
the ground that the appeal is frivolous and fulfills the requirements of Anders, this
court is obligated to undertake an independent examination of the record. See
Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991); Mays v. State,
904 S.W.2d 920, 922–23 (Tex. App.—Fort Worth 1995, no pet.). 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).
We have carefully reviewed the record—including the supplemental clerk’s
record filed at this court’s request—and counsel’s brief. The June 12, 2013
judgment adjudicating guilt shows that the trial court ordered Hubbard to pay a
fine of $3,891 and court costs of $465. The order to withdraw funds attached to
and incorporated into the judgment as Attachment A provided for a total amount
of $4,356, reflecting the amount set out in the judgment. A bill of costs was filed
August 26, 2013, showing an amount of $4,396.
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We have the authority to reform a judgment in an Anders appeal and to
affirm that judgment as reformed. See Bray v. State, 179 S.W.3d 725, 726 (Tex.
App.—Fort Worth 2005, no pet.) (en banc). We review the assessment of court
costs on appeal to determine if there is a basis for the cost. Johnson v. State,
423 S.W.3d 385, 390 (Tex. Crim. App. 2014). Only statutorily authorized court
costs may be assessed against a criminal defendant. Id. at 389 & n.3.
In the itemized bill of costs, Hubbard was charged $55 for “Criminal District
Clerk Fees,” but code of criminal procedure article 102.005(a) provides that “[a]
defendant convicted of an offense in a . . . district court shall pay for the services
of the clerk of the court a fee of $40.” Tex. Code Crim. Proc. Ann. art. 102.005(a)
(West 2006). Because article 102.005(a) provides only for a $40 criminal-district-
clerk fee, we modify the bill of costs to reflect a $40 criminal-district-clerk fee in
place of the charged $55 criminal-district-clerk fee. See id.; see also Alexander
v. State, No. 10-12-00251-CR, 2013 WL 5888695, at *9 (Tex. App.—Waco Oct.
20, 2013, no pet.) (mem. op., not designated for publication).
Therefore, we modify the trial court’s written judgment to reflect court costs
of $450 and the order to withdraw funds to reflect a total amount of $4,341; we
do not otherwise modify the court costs in the judgment or the order to withdraw
to reflect the overall increase set out in the bill of costs because court costs need
not be incorporated into the judgment to be effective and because the record
does not reflect what Hubbard may have paid since the issuance of the bill of
costs on August 26, 2013. See Houston v. State, 410 S.W.3d 475, 480 & n.6
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(Tex. App.—Fort Worth 2013, no pet.) (holding that bill of costs stating that
appellant owed $796.16 in court costs supported the $570 set out in the trial
court’s written judgment but declining to impose additional costs on appellant
when the record did not reflect a motion presented under code of criminal
procedure article 103.007 or whether appellant had paid court costs); see also
Tex. Code Crim. Proc. Ann. art. 103.008 (West 2006) (setting out procedure by
which convicted defendant may challenge by motion any specific item on the bill
of costs when filed not later than one year after the date of the case’s final
disposition).
Except for these necessary modifications to the trial court’s judgment and
the order to withdraw funds, we agree with counsel that this appeal is wholly
frivolous and without merit; we find nothing else 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 grant counsel’s motion to withdraw and affirm the trial
court’s judgment as modified. See Tex. R. App. P. 43.2(b).
PER CURIAM
PANEL: MCCOY, WALKER, and MEIER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: May 1, 2014
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