Opinion filed December 31, 2020
In The
Eleventh Court of Appeals
___________
No. 11-19-00415-CR
___________
ZACHARY DEWAYNE MCDONALD, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 32nd District Court
Nolan County, Texas
Trial Court Cause No. 12996
MEMORANDUM OPINION
Based upon an open plea of guilty, the trial court convicted Appellant,
Zachary Dewayne McDonald, of the offense of possession of four grams or more
but less than 200 grams of a controlled substance with intent to deliver. See TEX.
HEALTH & SAFETY CODE ANN. § 481.102(6) (West Supp. 2020), § 481.112(d) (West
2017). After a hearing on punishment, the trial court assessed punishment of ninety
years’ imprisonment. We modify and affirm.
Appellant’s court-appointed counsel has filed a motion to withdraw. The
motion is supported by a brief in which counsel professionally and conscientiously
examines the record and applicable law and states that he has concluded that the
appeal is frivolous and without merit. Counsel has provided Appellant with a copy
of the brief, a copy of the motion to withdraw, an explanatory letter, and a copy of
both the reporter’s record and the clerk’s record. Counsel advised Appellant of his
right to review the record and file a response to counsel’s brief. Counsel also advised
Appellant of his right to file a pro se petition for discretionary review in order to
seek review by the Texas Court of Criminal Appeals. See TEX. R. APP. P. 68. Court-
appointed counsel has complied with the requirements of Anders v. California, 386
U.S. 738 (1967); Kelly v. State, 436 S.W.3d 313 (Tex. Crim. App. 2014); In re
Schulman, 252 S.W.3d 403 (Tex. Crim. App. 2008); and Stafford v. State, 813 S.W.2d
503 (Tex. Crim. App. 1991).
Appellant has not filed a pro se response to counsel’s Anders brief. Following
the procedures outlined in Anders and Schulman, we have independently reviewed
the record, and we agree that the appeal is without merit. Based upon our review of
the record, we agree with counsel that no arguable grounds for appeal exist. 1
We conclude, however, that the judgment contains nonreversible errors. The
trial court ordered Appellant to pay court costs that included a time payment fee of
$25 pursuant to former Section 133.103 of the Texas Local Government Code. See
1
We note that Appellant has a right to file a petition for discretionary review pursuant to Rule 68
of the Texas Rules of Appellate Procedure.
2
former TEX. LOC. GOV’T CODE ANN. § 133.103 (West 2004). 2 We held that
subsections (b) and (d) of that section were facially unconstitutional because the
collected fees were to be allocated to general revenue and were not sufficiently
related to the criminal justice system. See King v. State, No. 11-17-00179-CR, 2019
WL 3023513, at *1, *5–6 (Tex. App.—Eastland July 11, 2019, pet. filed) (mem. op.,
not designated for publication). Accordingly, the trial court erred when it assessed
a time payment fee under former Section 133.103, subsections (b) and (d) of the
Texas Local Government Code as a court cost. See id.
When the trial court erroneously includes fees as court costs, we should
modify the trial court’s judgment to remove the improperly assessed fees. See
Cates v. State, 402 S.W.3d 250, 252 (Tex. Crim. App. 2013). We therefore modify
the trial court’s judgment to delete $22.50 of the time payment fee assessed as court
costs, leaving a time payment fee of $2.50. See King, 2019 WL 3023513, at *5–6.
Further, the judgment incorrectly reflects that Appellant pleaded true to two
alleged enhancements and that the trial court found two alleged enhancements to be
true. The record reflects that, as part of the plea proceedings, the State abandoned
the two enhancement paragraphs in the indictment. Appellant did not enter a plea to
either of the abandoned enhancement paragraphs, and the trial court did not make a
2
We note that the legislature has recently repealed subsections (b) and (d) of Section 133.103,
transferred Section 133.103 from the Local Government Code to Chapter 102 of the Texas Code of Criminal
Procedure, redesignated Section 133.103 as Article 102.030, and amended the language of the statute to
delete the provisions that were previously held to be unconstitutional. See Act of May 23, 2019, 86th Leg.,
R.S., ch. 1352, §§ 2.54, 4.40(33), 5.01, 5.04, 2019 Tex. Gen. Laws ____ (codified at TEX. CODE CRIM.
PROC. ANN. art. 102.030 (West Supp. 2020)) (effective January 1, 2020). The legislature provided that the
above changes “apply only to a cost, fee, or fine on conviction for an offense committed on or after the
effective date of this Act.” Id. § 5.01. The record in this cause reflects that the offense occurred prior to
January 1, 2020. Therefore, the former statute, rather than the recent revisions, applies to this case.
3
finding as to either of the abandoned enhancement paragraphs. An appellate court
has the power to modify the trial court’s judgment to make the judgment speak the
truth when it has the necessary information before it to do so. See TEX. R.
APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27–28 (Tex. Crim. App. 1993). We,
therefore, modify the judgment of the trial court to reflect that the first and second
enhancement paragraphs, and the pleas to those enhancement paragraphs, are “Not
Applicable.”
We grant counsel’s motion to withdraw; modify the judgment of the trial court
to delete $22.50 of the time payment fee and to reflect that the two enhancement
paragraphs and the pleas to the two enhancement paragraphs are “Not Applicable”;
and, as modified, affirm the judgment of the trial court.
PER CURIAM
December 31, 2020
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Trotter, J., and Wright, S.C.J. 3
Willson, J., not participating
3
Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.
4