Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-14-00882-CR
Darius DUKES,
Appellant
v.
The State
The STATE of Texas,
Appellee
From the 198th Judicial District Court, Bandera County, Texas
Trial Court No. CR-12-040
Honorable M. Rex Emerson, Judge Presiding
Opinion by: Rebeca C. Martinez, Justice
Sitting: Rebeca C. Martinez, Justice
Patricia O. Alvarez, Justice
Luz Elena D. Chapa, Justice
Delivered and Filed: October 21, 2015
AFFIRMED AS MODIFIED; MOTION TO WITHDRAW GRANTED
Darius Dukes pled guilty to possession of a controlled substance with intent to deliver in a
drug free zone and received deferred adjudication community supervision for a term of ten years
on May 9, 2013. The trial court modified the conditions of Dukes’ community supervision on
March 25, 2014 to require placement in a substance abuse treatment facility for a period of 90 days
to one year. On June 26, 2014, the State filed a motion to adjudicate guilt and revoke his
community supervision alleging that Dukes had violated multiple conditions of his community
supervision, including committing a new offense and testing positive for marijuana use on several
04-14-00882-CR
occasions. At the hearing on November 17, 2014, Dukes pled “true” to several of the alleged
violations: failure to pay the $500 fine in violation of condition (j); failure to pay court costs in
violation of condition (k); failure to file a financial statement following default on payments in
violation of condition (n); failure to abstain from drug use in violation of condition (o); and failure
to pay the $50 Crime Stoppers fee in violation of condition (r). The trial court found that Dukes
violated the conditions of his community supervision, adjudicated Dukes guilty, and revoked his
community supervision. The court sentenced Dukes to five years’ imprisonment in the Texas
Department of Criminal Justice, Institutional Division, and assessed $325 in appointed attorney’s
fees and $65 in court costs for the adjudication/revocation proceeding. Dukes now appeals.
Dukes’ court-appointed appellate attorney filed a brief containing a professional evaluation
of the record in accordance with Anders v. California, 386 U.S. 738 (1967), and a motion to
withdraw. In the brief, counsel raises no arguable appellate issues, and concludes this appeal is
frivolous and without merit. The brief meets the Anders requirements. See id.; see also High v.
State, 573 S.W.2d 807 (Tex. Crim. App. 1978); Gainous v. State, 436 S.W.2d 137 (Tex. Crim.
App. 1969). As required, counsel provided Dukes with a copy of the brief, motion to withdraw,
and appellate record, and informed him of his right to file his own pro se brief. See Kelly v. State,
436 S.W.3d 313, 319 (Tex. Crim. App. 2014); see also Nichols v. State, 954 S.W.2d 83, 85-86
(Tex. App.—San Antonio 1997, no pet.); Bruns v. State, 924 S.W.2d 176, 177 n.1 (Tex. App.—
San Antonio 1996, no pet.). Dukes did not file a pro se brief. After reviewing the record and
counsel’s brief, we conclude there is no reversible error and agree with counsel that the appeal is
wholly frivolous. See Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005).
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The judgment signed by the trial court on November 17, 2014, however, assesses attorney’s
fees in the amount of $325 against Dukes for the adjudication/revocation proceeding. 1 The record
indicates that the trial court found Dukes to be indigent and appointed counsel to represent him in
the trial court at the adjudication/revocation proceeding and on appeal. There is nothing in the
record to support a finding that Dukes’ ability to pay attorney’s fees changed after the trial court
determined him to be indigent. See Wiley v. State, 410 S.W.3d 313, 317 (Tex. Crim. App. 2013)
(explaining that a defendant who was previously found to be indigent is presumed to remain
indigent and, absent any indication in the record that the defendant’s financial status has changed,
the evidence will not support the imposition of attorney’s fees); see also TEX. CODE CRIM. PROC.
ANN. art. 26.04(p) (West Supp. 2013). Absent a showing of a material change in Dukes’ financial
circumstances, it was error for attorney’s fees to be assessed against him. See Fulmer v. State, 401
S.W.3d 305, 318-19 (Tex. App.—San Antonio 2013, pet. ref’d). Therefore, we modify the
judgment and bill of costs to delete the assessment of $325 in attorney’s fees against Dukes. See
Green v. State, No. 04-13-00018-CR, 2013 WL 6200328, at *2 (Tex. App.—San Antonio Nov.
27, 2013, no pet.) (mem. op., not designated for publication) (reforming both the judgment and
bill of costs to delete the assessment of attorney’s fees against an indigent criminal defendant).
The district clerk is ordered to prepare and file a corrected bill of costs in this case. See id.; see
also Benavidez v. State, No. 04-13-00029-CR, 2014 WL 462986, at *2 (Tex. App.—San Antonio
Feb. 5, 2014, no pet.).
1
The certified bill of costs also assesses attorney’s fees in the amount of $1,430 for the original trial court proceedings
that resulted in the order for deferred adjudication. See Armstrong v. State, 340 S.W.3d 759, 767 (Tex. Crim. App.
2011) (“attorney’s fees as set forth in a certified bill of costs are effective whether or not incorporated by reference in
the written judgment”). Because Dukes could have challenged the imposition of those attorney’s fees in a direct
appeal from the initial judgment, but did not do so, the issue has been procedurally defaulted. See Riles v. State, 452
S.W.3d 333, 337-38 (Tex. Crim. App. 2015).
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04-14-00882-CR
Accordingly, the judgment of the trial court is affirmed as modified, and appellate
counsel’s motion to withdraw is granted. 2 Nichols, 954 S.W.2d at 86; Bruns, 924 S.W.2d at 177.
Rebeca C. Martinez, Justice
DO NOT PUBLISH
2
No substitute counsel will be appointed. Should Dukes wish to seek further review of this case by the Texas Court
of Criminal Appeals, he must either retain an attorney to file a petition for discretionary review or must file a pro se
petition for discretionary review. Any petition for discretionary review must be filed within thirty days from the date
of either this opinion or the last timely motion for rehearing that is overruled by this court. See TEX. R. APP. P. 68.2.
Any petition for discretionary review must be filed in the Court of Criminal Appeals. See TEX. R. APP. P. 68.3. Any
petition for discretionary review must 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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