Carlos Dawayne Robinson v. the State of Texas

                          NUMBER 13-20-00043-CR

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI – EDINBURG


CARLOS DAWAYNE ROBINSON,                                                    Appellant,

                                           v.

THE STATE OF TEXAS,                                                           Appellee.


                    On appeal from the 19th District Court
                        of McLennan County, Texas.


                          MEMORANDUM OPINION

   Before Chief Justice Contreras and Justices Benavides and Silva
          Memorandum Opinion by Chief Justice Contreras

      Appellant Carlos Dawayne Robinson was convicted of aggravated robbery with a

deadly weapon, a first degree felony. See TEX. PENAL CODE ANN. § 29.03(a)(2). Appellant

pleaded guilty without the benefit of a plea agreement. A jury assessed punishment at life

imprisonment. Appellant’s appointed appellate counsel has filed a brief stating that there

are no arguable grounds for reversal of the judgment, see Anders v. California, 386 U.S.
738 (1967), but alleging that certain court costs were erroneously assessed. Appellant

has filed a pro se response. We affirm the judgment as modified. 1

                                     I.      ANDERS BRIEF

       In his brief, appellant’s counsel states that he has diligently reviewed the entire

record and has concluded that the “appeal presents no issues of arguable merit.” See id.;

High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel Op.] 1978). Counsel’s brief

meets the requirements of Anders as it presents a thorough, professional evaluation

showing why there are no arguable grounds for advancing an appeal. See In re

Schulman, 252 S.W.3d 403, 407 n.9 (Tex. Crim. App. 2008) (orig. proceeding) (“In Texas,

an Anders brief need not specifically advance ‘arguable’ points of error if counsel finds

none, but it must provide record references to the facts and procedural history and set

out pertinent legal authorities.”); Stafford v. State, 813 S.W.2d 503, 510 n.3 (Tex. Crim.

App. 1991).

       In compliance with Kelly v. State, 436 S.W.3d 313, 319 (Tex. Crim. App. 2014),

counsel has carefully discussed why, under controlling authority, there is no reversible

error in the trial court’s judgment. Counsel has informed this Court that he has: (1) notified

appellant that he has filed an Anders brief and a motion to withdraw; (2) provided

appellant with copies of both pleadings; (3) informed appellant of his rights to file a pro se

response, to review the record preparatory to filing that response, and to seek review if

we conclude that the appeal is frivolous; and (4) supplied appellant with a copy of the

record. See Anders, 386 U.S. at 744; Kelly, 436 S.W.3d at 319–20.




        1 This appeal was transferred from the Tenth Court of Appeals in Waco pursuant to a docket-

equalization order issued by the Texas Supreme Court. See TEX. GOV’T CODE ANN. § 74.001.

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        Appellant timely filed a pro se response arguing that his trial counsel provided

ineffective assistance by failing to: (1) advise him prior to his guilty plea of the State’s

evidence and witnesses; (2) advise him prior to his guilty plea that he was not eligible for

probation; (3) object to evidence of alleged prior offenses adduced by the State at the

punishment hearing; (4) challenge the State’s DNA evidence at the punishment hearing;

(5) effectively cross-examine certain witnesses at the punishment hearing; (6) raise

certain issues during closing argument at the punishment hearing; and (7) object to the

punishment jury charge on various grounds. Appellant also asserts in his response that:

(1) his guilty plea was involuntary; (2) he received an unfair punishment trial because

peremptory strikes from the jury pool were racially-motivated; (3) the evidence was

insufficient to support his guilty plea; (4) the evidence was insufficient to support a finding

that he committed prior offenses; and (5) the prosecutor erred by failing to disclose the

names of three witnesses before the plea hearing.

                                    II.     INDEPENDENT REVIEW

        Upon receiving an Anders brief, we must conduct a full examination of all the

proceedings to determine whether the appeal is wholly frivolous. Penson v. Ohio, 488

U.S. 75, 80 (1988). We have reviewed the record, counsel’s brief, and appellant’s pro se

response, and we have found no arguable reversible error. See Bledsoe v. State, 178

S.W.3d 824, 827–28 (Tex. Crim. App. 2005) (“Due to the nature of Anders briefs, by

indicating in the opinion it considered the issues raised in the brief and reviewed the

record for reversible error but found none, the court of appeals met the requirements of

Texas Rule of Appellate Procedure 47.1.”); Stafford, 813 S.W.2d at 509. 2


        2  We note that challenges requiring development of a record to substantiate a claim, such as
ineffective assistance of counsel, may be raised in an application for writ of habeas corpus. See TEX. CODE

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                                    III.     MODIFICATION OF JUDGMENT

        In his Anders brief, appellant’s counsel argues that some of the court costs

assessed are unlawful or premature and requests that we modify the judgment to delete

sixty dollars in costs. See TEX. R. APP. P. 43.2(b) (authorizing appellate courts to modify

the judgment and affirm as modified). Because the argument does not suggest any

reversible error in the court’s judgment, it is properly raised in counsel’s Anders brief. See

Ferguson v. State, 435 S.W.3d 291, 293 (Tex. App.—Waco 2014, no pet.) (modifying trial

court’s judgment to reflect proper offense dates where issue was raised in Anders brief);

see also Thomas v. State, No. 13-12-00283-CR, 2012 WL 6680143, at *2 (Tex. App.—

Corpus Christi–Edinburg Dec. 20, 2012, no pet.) (mem. op., not designated for

publication) (modifying trial court’s judgment to delete $500 fine from appellant’s

administrative fees where issue was raised in Anders brief). 3

        The record reflects that the trial court initially signed its judgment of conviction on

January 9, 2020. Attached to the judgment was an “Order to Withdraw Funds” from

appellant’s inmate trust account stating that “[c]ourt costs, fees and or/fines and/or

restitution have been incurred in the amount of $630.” After counsel objected that

appellant was being overcharged, the trial court signed a judgment nunc pro tunc and a

second “Order to Withdraw Funds” on August 6, 2020. 4 According to an itemized bill of


CRIM. PROC. ANN. art. 11.07; Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002). An application
for writ of habeas corpus relief would “provide an opportunity to conduct a dedicated hearing to consider
the facts, circumstances, and rationale behind counsel’s actions at . . . trial.” Thompson v. State, 9 S.W.3d
808, 814–15 (Tex. Crim. App. 1999); see Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim. App. 2011)
(“This Court has repeatedly stated that claims of ineffective assistance of counsel are generally not
successful on direct appeal and are more appropriately urged in a hearing on an application for a writ of
habeas corpus.”).
        3   The State has not filed a brief to assist us in evaluating this issue.
       4 Neither the judgment nunc pro tunc nor the second “Order to Withdraw Funds” specified the

amount of costs or fees being assessed.

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costs dated August 11, 2020, appellant was assessed a grand total of $340 in costs,

including $45 assessed for “VCTM45.” The bill of costs also states: “If total court costs,

reimbursement fees, fines and costs are not paid with 30 days of the Judgment, an

additional Time Payment Fee of $15.00 will be assessed pursuant to the applicable

Statutes and related case law. (CCP § 102.030).”

       Counsel asserts that “VCTM45” refers to the crime victim’s compensation fund,

and he argues that assessment of this fee was improper because the fee is not currently

authorized by statute. See Aviles-Barroso v. State, 477 S.W.3d 363, 398 (Tex. App.—

Houston [14th Dist.] 2015, pet. ref’d) (“Texas Local Government Code section 133.102

indicates that the fees for crime stoppers, criminal justice planning, officer education,

compensation to victims of crime, and judicial training are not to be individually assessed

but are, instead, part of the mandatory . . . consolidated fee to be assessed as a court

cost upon a felony conviction.”). We agree. See TEX. LOC. GOV’T CODE ANN.

§ 133.102(a)(1) (providing that a person convicted of a felony shall pay $185 in

consolidated court costs); id. § 133.102(e)(8) (providing that a certain percentage of the

consolidated court costs shall be allocated for compensation to victims of crime); Aviles-

Barroso, 477 S.W.3d at 398. Accordingly, we modify the judgment to delete the $45 fee

assessed for the crime victim’s compensation fund.

       Counsel also asks that we modify the judgment to delete the time payment fee.

See Act of June 2, 2003, 86th Leg. R.S., ch. 209, § 62, sec. 133.103, 2003 Tex. Gen.

Laws 979, 996–97 (amended 2019) (“A person convicted of an offense shall pay, in

addition to all other costs, a fee of $25 if the person: (1) has been convicted of a felony

or misdemeanor; and (2) pays any part of a fine, court costs, or restitution on or after the



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31st day after the date on which a judgment is entered assessing the fine, court costs, or

restitution.”) (former TEX. LOC. GOV’T CODE ANN. § 133.103; current version at TEX. CODE

CRIM. PROC. ANN. art. 102.030). 5

        Appellate courts which have considered the issue, including this Court and the

Tenth Court of Appeals, have held that ninety percent of the time payment fee under

former Texas Local Government Code § 133.103 is unconstitutional because only ten

percent of the fee is collected for a “legitimate criminal justice purpose,” while the

remainder is directed to general revenue. See Ovalle v. State, 592 S.W.3d 615, 618 (Tex.

App.—Dallas 2020) (“[I]f a statute turns the courts into tax gatherers, then the statute

impermissibly delegates to the courts a power more properly attached to the executive

branch.”), vacated on other grounds and remanded, No. PD-0127-20, 2021 WL 1938672

(Tex. Crim. App. May 12, 2021); Simmons v. State, 590 S.W.3d 702, 712 (Tex. App.—

Waco 2019), vacated on other grounds and remanded, No. PD-1264-19, 2021 WL

1938758 (Tex. Crim. App. May 12, 2021); Dulin v. State, 583 S.W.3d 351, 353 (Tex.

App.—Austin 2019), vacated on other grounds and remanded, 620 S.W.3d 129 (Tex.

Crim. App. 2021); Johnson v. State, 573 S.W.3d 328, 340 (Tex. App.—Houston [14th

Dist.] 2019), vacated on other grounds and remanded, No. PD-0246-19, 2021 WL

1939984 (Tex. Crim. App. May 12, 2021); Crooks v. State, 13-20-00038-CR, 2020 WL



         5 In 2019, the Texas Legislature reduced the time payment fee to $15 and transferred the statute

to the code of criminal procedure. Act of May 23, 2019, 86th Leg., R.S., ch. 1352, §§ 2.54, 4.40(33), 2019
Tex. Sess. Laws ch. 1352. The new statute provides that the entire time payment fee is “to be used for the
purpose of improving the collection of outstanding court costs, fines, reimbursement fees, or restitution or
improving the efficiency of the administration of justice in the county or municipality.” TEX. CODE CRIM. PROC.
art. 102.030(b). The changes, however, apply only to a cost, fee, or fine assessed on a conviction for an
offense committed on or after January 1, 2020. See Act of May 23, 2019, 86th Leg., R.S., ch. 1352, § 5.01,
2019 Tex. Sess. Laws ch. 1352. Because the offense in this case was committed before January 1, 2020,
the former law applies. See Ovalle v. State, 592 S.W.3d 615, 617 n.1 (Tex. App.—Dallas 2020), vacated
on other grounds and remanded, No. PD-0127-20, 2021 WL 1938672 (Tex. Crim. App. May 12, 2021).

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6601601, at *3 (Tex. App.—Corpus Christi–Edinburg Nov. 12, 2020) (mem. op., not

designated for publication), vacated on other grounds and remanded, No. PD-1183-20,

2021 WL 1940152 (Tex. Crim. App. May 12, 2021); Townsend v. State, No. 13-18-00049-

CR, 2019 WL 6205470, at *8 (Tex. App.—Corpus Christi–Edinburg Nov. 21, 2019) (mem.

op., not designated for publication), vacated on other grounds and remanded, No. PD-

1259-19, 2021 WL 1940596 (Tex. Crim. App. May 12, 2021); King v. State, No. 11-17-

00179-CR, 2019 WL 3023513, at *5 (Tex. App.—Eastland July 11, 2019) (mem. op., not

designated for publication), vacated on other grounds and remanded, No. PD-0779-19,

2021 WL 1939561 (Tex. Crim. App. May 12, 2021).

       In Dulin v. State, the Texas Court of Criminal Appeals recently held that “[t]he

pendency of an appeal stops the clock for purposes of the time payment fee.” Dulin, 620

S.W.3d at 133. Without addressing the constitutionality of the statute, the Court held that

the assessment of time payment fees in Dulin’s case was “premature, and the fees should

be struck in their entirety, without prejudice to them 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 that he owes.” Id. In light of this ruling, the Court

vacated several previous appellate judgments which had affirmed ten percent of the fee.

See Townsend, 2021 WL 1940596, at *1; Crooks, 2021 WL 1940152, at *1; Johnson,

2021 WL 1939984, at *1; King, 2021 WL 1939561, at *1; Simmons, 2021 WL 1938758,

at *1; Ovalle, 2021 WL 1938672, at *1.

       In this case, however, the record does not support counsel’s assertion that the fee

was actually assessed. As noted, neither the judgment nunc pro tunc nor the order to

withdraw attached thereto stated that any particular costs or fees were being assessed.



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And though the bill of costs states that a time payment fee could be assessed, there is

nothing indicating that the fee was actually assessed. See TEX. CODE CRIM. PROC. ANN.

art. 102.030(a); see also Nieves-Perez v. State, No. 12-19-00389-CR, 2021 WL 1047209,

at *5 (Tex. App.—Tyler Mar. 18, 2021, pet. ref’d) (mem. op., not designated for

publication) (overruling appellant’s issue regarding constitutionality of time payment

statute where bill of costs contained identical speculative language). Moreover, the bill of

costs states that the fee, if eventually warranted, will be assessed “pursuant to the

applicable Statutes and related case law,” which presumably includes the case law

providing that ninety percent of the fee is unconstitutional. Because the record does not

show that a time payment fee was assessed, we decline counsel’s request to modify the

judgment to delete such assessment.

                                     IV.      MOTION TO WITHDRAW

        In accordance with Anders, appellant’s appointed appellate counsel has filed a

motion to withdraw. See Anders, 386 U.S. at 744; see also In re Schulman, 252 S.W.3d

at 408 n.17 (citing Jeffery v. State, 903 S.W.2d 776, 779–80 (Tex. App.—Dallas 1995, no

pet.) (“If an attorney believes the appeal is frivolous, he must withdraw from representing

the appellant. To withdraw from representation, the appointed attorney must file a motion

to withdraw accompanied by a brief showing the appellate court that the appeal is

frivolous.” (citations omitted))). We grant the motion to withdraw.

        We order counsel to send a copy of the opinion and judgment to appellant, and to

advise him of his right to file a petition for discretionary review, within five days of the date

of this opinion. 6 See TEX. R. APP. P. 48.4; see also In re Schulman, 252 S.W.3d at 412


        6No substitute counsel will be appointed. Should appellant wish to seek further review by the Texas
Court of Criminal Appeals, he must either retain an attorney to file a petition for discretionary review or file

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n.35; Ex parte Owens, 206 S.W.3d 670, 673 (Tex. Crim. App. 2006).

                                          V.       CONCLUSION

        The trial court’s judgment is affirmed as modified herein. See TEX. R. APP. P.

43.2(b).


                                                                           DORI CONTRERAS
                                                                           Chief Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed on the
15th day of July, 2021.




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 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(a), and 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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