Marshall Deshun Parker, Appellant v. The State of Texas, Appellee (2015)

MEMORANDUM OPINION

After Marshall Deshun Parker pled guilty to the offenses of credit or debit card abuse, burglary of a building, and escape while arrested, he was sentenced to (1) twenty-four months' incarceration for credit or debit card abuse, (2) twenty-four months' incarceration for burglary of a building, and (3) ten years' incarceration for escape while arrested.   Each of these respective sentences was suspended, and Parker was placed on community supervision for a period of five years for each count.   Parker's community supervision was thereafter revoked, and he was (1) sentenced to twenty-two months' incarceration for debit or credit card abuse and for burglary of a building, (2) sentenced to eight years' incarceration for escape while arrested, and (3) ordered to pay attorney fees of $650.00.   The sentences are to run concurrently.   Parker appeals the judgment revoking his community supervision.

Parker's appellate counsel filed a brief that outlined the procedural history of the case, provided a detailed summary of the evidence elicited during the course of 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.1981);  High v. State, 573 S.W.2d 807, 812–13 (Tex.Crim.App. [Panel Op.] 1978).   Counsel also filed a motion with this Court seeking to withdraw as counsel in this appeal.

On March 24, 2015, counsel mailed to Parker a copy of the brief, the appellate record, and the motion to withdraw.   By letter, counsel informed Parker of his right to review the record and file a pro se response.   Parker's pro se response, if any, was due on or before April 25, 2015.   Parker has not filed a pro se response and has not requested an extension of time in which to file such a response.

In Anders cases, appellate courts “have the authority to reform judgments and affirm as modified in cases where there is non reversible 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).   We note that the trial court's judgment revoking community supervision ordered Parker to pay $650.00 in attorney fees for court-appointed counsel.   The record establishes that Parker is indigent.   Under Article 26.05(g) of the Texas Code of Criminal Procedure, a trial court has the authority to order the reimbursement of court-appointed attorney fees only if “the court determines that a defendant has financial resources that enable him to offset in part or in whole the costs of the legal services provided, including any expenses and costs.”  Tex.Code Crim. Proc. AnnN. art. 26.05(g) (West Supp.2014).  “ ‘[T]he defendant's financial resources and ability to pay are explicit critical elements in the trial court's determination of the propriety of ordering reimbursement of costs and fees' ” of legal services provided.  Armstrong v. State, 340 S.W.3d 759, 765–66 (Tex.Crim.App.2011) (quoting Mayer v. State, 309 S.W.3d 552, 556 (Tex.Crim.App.2010)).

Here, the record is devoid of any determination or finding by the trial court that Parker had financial resources or was otherwise able to pay the appointed attorney fees.   Thus, the assessment of attorney fees was erroneous and should be removed.  Cates v. State, 402 S.W.3d 250, 252 (Tex.Crim.App.2013);  see Mayer, 309 S.W.3d 552;  Martin v. State, 405 S.W.3d 944, 946–47 (Tex.App.—Texarkana 2013, no pet.).

We have reviewed the entire appellate record and have independently determined that no reversible error exists.   Accordingly, we modify the trial court's judgment by deleting the assessment of $650.00 for attorney fees from the judgment.

We affirm the trial court's judgment, as modified.¹

FOOTNOTES

1.   Since we agree 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.  Anders, 386 U.S. at 744.   No substitute counsel will be appointed.   Should appellant wish 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 appellant must file a pro se petition for discretionary review.   Any petition for discretionary review 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. Any petition for discretionary review must be filed with the clerk of the Texas Court of Criminal Appeals.   See Tex.R.App. P. 68.3.   Any petition for discretionary review should comply with the requirements of Rule 68.4 of the Texas Rules of Appellate Procedure.   See Tex.R.App. P. 68.4.

Memorandum Opinion by Chief Justice Morriss