IN THE
TENTH COURT OF APPEALS
No. 10-16-00152-CR
No. 10-16-00153-CR
ANDRE-MARCO MCINTOSH,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 52nd District Court
Coryell County, Texas
Trial Court No. 15-22875
Trial Court No. 15-22876
MEMORANDUM OPINION
In two indictments and two judgments, Andre-Marco McIntosh was charged and
convicted of Continuous Sexual Abuse of a Child. See TEX. PENAL CODE ANN. § 21.02
(West 2011). He pled guilty, without the benefit of a plea bargain, to both charges and
punishment evidence was presented in one hearing before the trial court. McIntosh was
sentenced to life in prison for each offense and the sentences were ordered to run
concurrently.
McIntosh’s appellate attorney filed Anders briefs in these appeals. See Anders v.
California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967). McIntosh was provided a
copy of the record by counsel, advised of his right to review the record, and advised of
his right to submit a response on his own behalf. McIntosh has not submitted his own
response.
Counsel asserts in the Anders brief that counsel reviewed the reporter’s record and
clerk’s record, including the judgments and sentences, and reviewed the pleas of guilty,
the waivers signed by McIntosh, and the sufficiency of the indictment. Counsel also
reviewed the evidence presented at the punishment phase of the trial and the adequacy
of the sentences. After the review, counsel has concluded there is no non-frivolous issue
to raise in these appeals.
Counsel's brief evidences a professional evaluation of the record for error, and we
conclude that counsel performed the duties required of appointed counsel. See Anders,
386 U.S. at 744; High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. 1978); see also In re
Schulman, 252 S.W.3d 403, 407 (Tex. Crim. App. 2008).
In reviewing an Anders appeal, we must, "after a full examination of all the
proceedings, . . . decide whether the case is wholly frivolous." See Anders, 386 U.S. at 744;
accord Stafford v. State, 813 S.W.2d 503, 509-11 (Tex. Crim. App. 1991). An appeal is
"wholly frivolous" or "without merit" when it "lacks any basis in law or fact." McCoy v.
Court of Appeals, 486 U.S. 429, 439 n. 10, 108 S. Ct. 1895, 100 L. Ed. 2d 440 (1988).
McIntosh v. State Page 2
Arguments are frivolous when they "cannot conceivably persuade the court." Id. at 436.
An appeal is not wholly frivolous when it is based on "arguable grounds." Stafford, 813
S.W.2d at 511.
After reviewing counsel's briefs and the entire record in this appeal, we determine
the appeals to be wholly frivolous. See Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex. Crim.
App. 2005). We note, however, that costs were assessed in both judgments of conviction.
Where allegations and evidence of more than one offense are presented in a single trial
or plea proceeding, the trial court errs in assessing costs in each conviction. Hurlburt v.
State, Nos. 10-15-00400-CR, 10-15-00401-CR, 10-15-00402-CR, 10-15-00403-CR, 2015 Tex.
App. LEXIS 12676, *8 (Tex. App.—Waco Nov. 30, 2016, no pet. h.) (publish). Hurlburt had
not been decided at the time briefing in this case was submitted. Based on our precedent,
abatement to the trial court for the appointment of new counsel is not required. See
Ferguson v. State, 435 S.W.3d 291 (Tex. App.—Waco 2014, pet. dism.). Because this error
does not impact the determination of guilt or punishment and, therefore, does not result
in a reversal of either judgment, we may modify one of the judgments to correct the
erroneous assessment of costs. Id. Accordingly, the Nunc Pro Tunc Judgment of
Conviction by Court—Waiver of Jury Trial in trial court case number 15-22876 is
modified to delete the assessed court costs. We affirm the trial court’s Nunc Pro Tunc
Judgment of Conviction by Court—Waiver of Jury Trial in trial court case number 15-
22876 as modified and affirm the trial court’s Nunc Pro Tunc Judgment of Conviction by
McIntosh v. State Page 3
Court—Waiver of Jury Trial in trial court case number 15-22875.
Should McIntosh wish to seek further review of these cases 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. No substitute counsel will
be appointed. Any petition for discretionary review must be filed within thirty days from
the date of this opinion or the last timely motion for rehearing or timely motion for en
banc reconsideration has been overruled by this Court. See TEX. R. APP. P. 68.2. Any
petition and all copies of the petition for discretionary review must be filed with the Clerk
of the Court of Criminal Appeals. See TEX. R. APP. P. 68.3. (Tex. Crim. App. 1997, amended
eff. Sept. 1, 2011). 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. See also In re Schulman, 252 S.W.3d 403, 409 n.22 (Tex. Crim. App. 2008).
Counsel's motions to withdraw from representation of McIntosh are granted, and
counsel is discharged from representing McIntosh. Notwithstanding counsel’s
discharge, counsel must send McIntosh a copy of our decision, notify him of his right to
file a pro se petition for discretionary review, and send this Court a letter certifying
counsel's compliance with Texas Rule of Appellate Procedure 48.4. TEX. R. APP. P. 48.4;
see also In re Schulman, 252 S.W.3d at 409 n.22.
TOM GRAY
Chief Justice
McIntosh v. State Page 4
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed and affirmed as modified
Opinion delivered and filed January 18, 2017
Do not publish
[CRPM]
McIntosh v. State Page 5