Blake Riley Ballard v. The State of Texas Appeal from 369th District Court of Leon County (memorandum opinion)

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COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS BLAKE RILEY BALLARD, § No. 08-21-00180-CR § Appeal from the v. § 369th District Court THE STATE OF TEXAS, § of Leon County, Texas1 § (TC# CM-15-178) Appellant, Appellee. MEMORANDUM OPINION This is an appeal from a judgment revoking community supervision. In 2015, Appellant Blake Riley Ballard pleaded guilty to burglary of habitation and she was placed on six years’ deferred adjudication. In September 2020, or nearly five years later, the State filed a motion to adjudicate guilt alleging multiple violations of the conditions of community supervision. On July 29, 2021, Ballard pleaded true to multiple allegations contained in the State’s motion. After an evidentiary hearing, the trial court revoked Ballard’s community supervision, adjudicated her guilty of burglary of habitation, and sentenced her to sixteen years in prison. We modify the judgment to delete certain improperly assessed fees and affirm the judgment as modified. 1 As this case was transferred from our sister court in the Tenth Judicial District of Texas at Waco (Appellate case no. 10-21-00246-CR), we decide it in accordance with the precedent of that court. TEX. R. APP. P. 41.3. 1 I. FRIVOLOUS APPEAL Ballard’s court-appointed counsel has filed a motion to withdraw. The motion is supported by a brief in which he has concluded that the appeal is wholly frivolous and without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738 (1967), by presenting a professional evaluation of the record demonstrating why, in effect, there are no arguable grounds to be advanced. See In re Schulman, 252 S.W.3d 403, 406 n.9 (Tex. Crim. App. 2008) (“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.”); High v. State, 573 S.W.2d 807, 812-13 (Tex. Crim. App. 1978). Counsel has notified the Court in writing that he has delivered a copy of counsel’s brief and the motion to withdraw to Ballard, and he has advised Ballard of her right to review the record, file a pro se brief, and to seek discretionary review. Kelly v. State, 436 S.W.3d 313, 318-20 (Tex. Crim. App. 2014) (setting forth duties of counsel). Counsel also provided Ballard with a copy of the appellate record in compliance with Kelly. Ballard has not filed a pro se brief. After carefully reviewing the record and counsel’s brief, we conclude that the appeal is wholly frivolous and without merit. Further, we find nothing in the record that might arguably support the appeal. However, in Anders cases, as the transferor court has held, appellate courts “have the authority to reform judgments and affirm as modified in cases where there is non reversible error.” Ferguson v. State, 435 S.W.3d 291, 294 (Tex. App.—Waco 2014, pet. struck). Thus, because court costs are a nonreversible issue that may be corrected within the Anders context, we review the assessment of costs questioned by appellate counsel in his Anders brief. Specifically, appellate counsel points out that the bill of costs contained the following improperly assessed fees: a $500 fee for court appointed counsel, an excessive crime stoppers fee of $150, a $24 fee for issuance of a capias, and a $150 sheriff’s service fee. 2 Regarding the $500 fee for counsel appointed to Ballard during the revocation, the record reflects that Ballard was represented by appointed counsel throughout the entire proceedings due to her indigency status. Once a defendant is found to be indigent, she “is presumed to remain indigent for the remainder of the proceedings in the case unless a material change in the defendant’s financial circumstances occurs.” TEX. CODE CRIM. PROC. ANN. art. 26.04(p). Under Article 26.05(g) of the Texas Code of Criminal Procedure, a trial court has the authority to order the reimbursement of court-appointed attorney fees only if “the judge determines that a defendant has financial resources that enable the defendant to offset in part or in whole the costs of the legal services provided . . . including any expenses and costs.” TEX. CODE CRIM. PROC. ANN. art. 26.05(g). Since Ballard had been found by the trial court to be indigent and the record contains no finding regarding her ability to pay for counsel appointed to her for assistance with the revocation, we strike the entry of $500 for “court appointed attorney fees” from the bill of costs. See Cates v. State, 402 S.W.3d 250, 252 (Tex. Crim. App. 2013). Regarding the $150 crime stoppers fee, we agree with appellate counsel that the fee originally assessed when Ballard was placed on deferred adjudication should not have exceeded $50 in accordance with former article 42.12, § 11(a)(21) of the Code of Criminal Procedure. Act of May 12, 2015, 84th Leg., R.S., ch. 106, § 2, 2015 Tex. Gen. Laws 1104, 1104, repealed by Act of Act of May 26, 2015, 84th Leg., R.S., ch. 770, §§ 1.01, 3.01, 4.01-.02, 2015 Tex. Gen. Laws 2320, 2320-64, 2395. 2 As such, we reduce, by $100, the excessive crime stoppers fee reflected in the bill of costs, such that only a fee of $50 is assessed. 2 Effective January 1, 2017, the legislature repealed and recodified article 42.12 into its own chapter, chapter 42A. See Act of May 26, 2015, 84th Leg., R.S., ch. 770, §§ 1.01, 3.01, 4.01-.02, 2015 Tex. Gen. Laws 2320, 2320-64, 2394 (codified at TEX. CODE CRIM. PROC. ANN. ch. 42A). The substantive content of article 42.12, section 11(a)(21) survived the repeal/recodification and is currently found in article 42A.301(a)(19) of the Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art 42A.301(a)(19). 3 As to the $24 fee for issuance of a capias and the $150 sheriff’s fee for executing an issued capias, we disagree with appellate counsel’s assessment of those fees. The record reflects that Ballard was arrested after she was indicted, after her motion to adjudicate was filed, and when she failed to appear for a hearing on the motion to adjudicate. The $24 fee for issuance of a capias was correctly assessed, as former Government Code section 51.318(b)(2) authorized the district clerk to collect an $8 fee for each issuance of a capias. Act of May 19, 2011, 82nd Leg., R.S., ch. 237, § 1, 2011 Tex. Gen. Laws 818, 818 (amended 2021) (current version at TEX. GOV’T. CODE ANN. 51.318(b)(2)). The $150 sheriff’s fee was also correctly assessed, as former article 102.011 of the Code of Criminal Procedure, like the current version, stated in relevant part that upon conviction, a defendant shall pay the fee of $50 to defray the cost of a peace officer’s execution of a capias. Act of May 20, 2009, 81st Leg., R.S., ch. 87, § 6.008, 2009 Tex. Gen. Laws 208, 231 (amended 2019) (current version at TEX. CODE CRIM. PROC. ANN. art. 102.011(a)(2)). Because both complained-of fees were statutorily authorized, we deny appellate counsel’s request to strike such fees. Although it was not a fee pointed out by appellate counsel, the order of deferred adjudication included a fine of $3,500, and related to that fine, testimony at the motion-toadjudicate hearing reflected that Ballard still owed $2,435.66 of the fine. However, when the trial court adjudicated Ballard’s guilt and pronounced her sentence, it did not orally pronounce any fine. The trial court was required to orally pronounce the fine because when it adjudicated defendant’s guilt, it set aside the order deferring adjudication which included any fine imposed in that order. See Taylor v. State, 131 S.W.3d 497, 502 (Tex. Crim. App. 2004). When the oral pronouncement of sentence and the sentence in the written judgment conflict, the oral pronouncement controls. Id. at 500. Since no fine was pronounced, we will delete the entry of $2,435.66 for “Fine” from the 4 bill of costs. II. CONCLUSION We modify the bill of costs by deleting the assessment of $500 in court appointed attorney fees incurred during the revocation, and to correctly reflect that no attorney fees are due, and, additionally, we delete the fine of $2,435.66, which will reflect that no fine is due. We further modify the bill of costs by reducing the crime stoppers fee by $100, such as to correctly reflect a maximum of a $50 crime stoppers fee. With the bill of costs so modified, we grant counsel’s motion to withdraw and affirm the trial court’s judgment. GINA M. PALAFOX, Justice February 28, 2022 Before Rodriguez, C.J., Palafox, and Alley, JJ. (Do Not Publish) 5

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