David Joel Dean v. the State of Texas

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-21-00020-CR
DAVID JOEL DEAN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 8th District Court
Hopkins County, Texas
Trial Court No. 2027868
Before Morriss, C.J., Burgess and Stevens, JJ.
Memorandum Opinion by Justice Stevens
MEMORANDUM OPINION
On February 9, 2021, David Joel Dean pled guilty to indecency with a child by contact.
See TEX. PENAL CODE ANN. § 21.11. He also pled true to a prior conviction enhancement
allegation. On March 31, 2021, the trial court held a sentencing hearing, found Dean guilty of
the charged offense, and sentenced him to twelve years’ incarceration. Dean appeals that
conviction and sentence.
Dean’s appellate counsel filed a brief that outlined the procedural history of the case,
provided a detailed summary of the evidence elicited during the trial court proceedings, and
stated that counsel found no meritorious issues to raise on appeal. Meeting the requirements of
Anders v. California, counsel has provided a professional evaluation of the record demonstrating
why there are no arguable grounds to be advanced. Anders v. California, 386 U.S. 738, 743–44
(1967); In re Schulman, 252 S.W.3d 403, 406 (Tex. Crim. App. 2008) (orig. proceeding);
Stafford v. State, 813 S.W.2d 503, 509–10 (Tex. Crim. App. 1991); High v. State, 573 S.W.2d
807, 812–13 (Tex. Crim. App. [Panel Op.] 1978).
On May 28, 2021, Dean’s counsel filed a motion with this Court seeking to withdraw as
counsel in this appeal and provided Dean with a copy of the brief, a motion for access to the
appellate record lacking only his signature, and the motion to withdraw. His counsel also
informed Dean of his right to review the record and file a pro se response. On the same date, this
Court notified Dean that his signed motion for access to the record was due on or before June 14,
2021. Dean did not file the motion for access to the record. On July 7, 2021, this Court notified
Dean that any pro se response to his counsel’s Anders brief was due on or before August 6, 2021.
2
On August 17, 2021, this Court notified Dean that his appeal was set for submission to the Court
on September 7, 2021. We received neither a response nor a request for extension of time from
Dean.
We have reviewed the entire appellate record and have independently determined that no
reversible error exists. See Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim. App. 2005).
However, in Anders cases, appellate courts “have the authority to reform judgments and affirm
as modified in cases where there is nonreversible error.” Ferguson v. State, 435 S.W.3d 291,
294 (Tex. App.—Waco 2014, pet. struck) (comprehensively discussing appellate cases that have
modified judgments in Anders cases). The record shows that the judgment and bill of costs
assessed Dean a time-payment fee of $15.00.
The Texas Court of Criminal Appeals has recently concluded that a time payment fee like
the one imposed here “must indeed be struck for being prematurely assessed because a
defendant’s appeal suspends the duty to pay court costs and therefore suspends the running of the
clock for the purposes of the time payment fee.” Dulin v. State, 620 S.W.3d 129, 129 (Tex.
Crim. App. 2021). “As a consequence, even now, assessment of the time payment fee in this
case would be premature because appellate proceedings are still pending.” Id. Pursuant to
Dulin, we strike the time payment fee “in [its] entirety, without prejudice to [it] being assessed
later if, more than 30 days after the issuance of the appellate mandate, the defendant has failed to
completely pay any fine, court costs, or restitution” owed. Id. at 133.
We modify the judgment and the bill of costs by deleting the time payment fee.
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In the Anders context, once we determine that the appeal is without merit, we must either
dismiss the appeal or affirm the trial court’s judgment. See Anders, 386 U.S. 738. Therefore, we
affirm the judgment of the trial court, as modified.1
Scott E. Stevens
Justice
Date Submitted: September 7, 2021
Date Decided: December 7, 2021
Do Not Publish
1
Since we agree that this case presents no reversible error, we also, in accordance with Anders, grant counsel’s
request to withdraw from further representation of Appellant in this case. See Anders, 386 U.S. at 744. No
substitute counsel will be appointed. Should Appellant desire to seek further review of this case by the Texas Court
of Criminal Appeals, Appellant must either retain an attorney to file a petition for discretionary review or file a
pro se petition for discretionary review. Any petition for discretionary review (1) must be filed within thirty days
from either the date of this opinion or the date on which the last timely motion for rehearing was overruled by this
Court, see TEX. R. APP. P. 68.2, (2) must be filed with the clerk of the Texas Court of Criminal Appeals, see TEX. R.
APP. P. 68.3, and (3) should comply with the requirements of Rule 68.4 of the Texas Rules of Appellate Procedure,
see TEX. R. APP. P. 68.4.
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