Gerardo Alonzo Lopez v. The State of Texas Appeal from 244th District Court of Ector County (memorandum opinion per curiam)
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Opinion filed August 30, 2019 In The Eleventh Court of Appeals ___________ No. 11-19-00027-CR ___________ GERARDO ALONZO LOPEZ, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 244th District Court Ector County, Texas Trial Court Cause No. C-18-1149-CR MEMORANDUM OPINION Based upon an open plea of guilty, the trial court convicted Appellant of felony driving while intoxicated. After a hearing on punishment, the trial court assessed Appellant’s punishment at confinement for five years and a fine of $500. We modify the trial court’s judgment and affirm as modified. 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 concludes that this appeal is frivolous and without merit. Counsel has provided Appellant with a copy of the brief, a copy of the motion to withdraw, a copy of the clerk’s record and the reporter’s record, and an explanatory letter. 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 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 response to counsel’s Anders brief. Following the procedures outlined in Anders and Schulman, we have independently reviewed the record, and we agree with counsel that no arguable grounds for appeal exist.1 We note, however, that the judgment contains a nonreversible error. In the judgment, the trial court ordered Appellant to pay court costs, including a Time Payment Fee of $25 pursuant to Section 133.103 of the Texas Local Government Code. See TEX. LOC. GOV’T CODE ANN. § 133.103 (West Supp. 2018). We recently held that subsections (b) and (d) of that section are facially unconstitutional because the collected fees are allocated to general revenue and are 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 Section 133.103, subsections (b) and (d) of the Texas Local Government Code as a court cost. See id. 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 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. We grant counsel’s motion to withdraw; modify the judgment of the trial court as set forth above; and, as modified, affirm the judgment of the trial court. PER CURIAM August 30, 2019 Do not publish. See TEX. R. APP. P. 47.2(b). Panel consists of: Bailey, C.J., Stretcher, J., and Wright, S.C.J.2 Willson, J., not participating. 2 Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland, sitting by assignment. 3
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