v.
the State of Texas
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-21-00024-CR
BRYAN SETH WILLIAMS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 188th District Court
Gregg County, Texas
Trial Court No. 48328-A
Before Morriss, C.J., Stevens and van Cleef, JJ.
Memorandum Opinion by Justice Stevens
MEMORANDUM OPINION
A trial court found Bryan Seth Williams guilty of aggravated assault, a second-degree felony. See TEX. PENAL CODE ANN. § 22.02(a)(2) (Supp.). After a bench trial on punishment, Williams was sentenced to six years’ imprisonment. Williams appeals. 1
Williams’s attorney has filed a brief which states that she has reviewed the record and has found no genuinely arguable issues that could be raised on appeal. The brief sets out the procedural history of the case and summarizes the evidence elicited during the course of the trial court proceedings. 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. 1991); 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 September 24, 2021, counsel mailed to Williams copies of the brief, the motion to withdraw, and a motion for pro se access to the record lacking only Williams’s signature. Williams was informed of his rights to review the record and file a pro se response. This Court granted Williams’s motion for pro se access to the appellate record, which was mailed to Williams on December 7. We also granted Williams’s motion for an extension of time to file his pro se brief and, by letter dated March 1, 2022, informed Williams that any pro se response was due on or before March 31. This Court further extended the deadline for Williams to file a pro se
1 Williams also appeals his conviction for family violence assault with a prior conviction for family violence assault in companion cause number 06-21-00023-CR.
response to May 1 and informed him that further extensions would not be granted. On May 16, this Court notified Williams that the case would be set for submission on the briefs on June 6. While we received letters from Williams, we did not receive a pro se response. [2]
We have reviewed the entire appellate record and have independently determined that no reversible error exists. See Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim. App. 2005). However, non-reversible error is found in the amount of court costs imposed.
The clerk’s bill of costs in this case totaled $249.00, but the trial court’s judgment ordered Williams to pay $394.00 in court costs. Because the amount of court costs contained in the judgment is not supported by the bill of costs, it must be modified. Also, the bill of costs includes a $25.00 time payment fee, which was incorporated in the trial court’s judgment. The Texas Court of Criminal Appeals has recently concluded that a time payment fee like the one imposed here “must indeed be struck for being prematurely assessed because a defendant’s appeal suspends the duty to pay court costs and therefore suspends the running of the clock for the purposes of the time payment fee.” Dulin v. State, 620 S.W.3d 129, 129 (Tex. Crim. App. 2021). “As a consequence, even now, assessment of the time payment fee in this case would be premature because appellate proceedings are still pending.” Id.
This Court has the authority to modify incorrect judgments when it has the information necessary 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); Rhoten v. State, 299 S.W.3d 349, 356 (Tex. App.—Texarkana 2009, no pet.). Pursuant to Dulin, we strike the time payment fee “in [its] entirety, without prejudice to [it] 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” owed. Dulin, 620 S.W.3d at 133.
We modify the bill of costs and judgment by deleting the time payment fee and to reflect that the amount of court costs owed is $224.00. As modified, we affirm the trial court’s judgment. [3]
Scott E. Stevens Justice Date Submitted: June 6, 2022 Date Decided: June 7, 2022 Do Not Publish