                                 NO. 12-18-00225-CR

                         IN THE COURT OF APPEALS

              TWELFTH COURT OF APPEALS DISTRICT

                                    TYLER, TEXAS

 ADRIAN FLOURNOY,                                §      APPEAL FROM THE 7TH
 APPELLANT

 V.                                              §      JUDICIAL DISTRICT COURT

 THE STATE OF TEXAS,
 APPELLEE                                        §      SMITH COUNTY, TEXAS

                                 MEMORANDUM OPINION
                                     PER CURIAM
       Adrian Flournoy appeals his conviction for possession of a controlled substance.
Appellant’s counsel filed a brief in compliance with Anders v. California, 386 U.S. 738, 87 S. Ct.
1396, 18 L. Ed. 2d 493 (1967), and Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969).
We modify and affirm as modified.


                                         BACKGROUND
       Appellant was charged by indictment with possession of one gram or more but less than
four grams of cocaine enhanced by a prior felony conviction. He pleaded “guilty,” and the trial
court assessed his punishment at imprisonment for eight years. This appeal followed.


                        ANALYSIS PURSUANT TO ANDERS V. CALIFORNIA
       Appellant’s counsel filed a brief in compliance with Anders v. California and Gainous v.
State. Appellant’s counsel relates that he reviewed the record and found no reversible error or
jurisdictional defect. In compliance with High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App.
[Panel Op.] 1978), counsel’s brief contains a professional evaluation of the record demonstrating
why there are no arguable grounds to be advanced. 1
         We considered counsel’s brief and conducted our own independent review of the record.
Id. at 811. We found no reversible error.


                                                      COURT COSTS
         In reviewing the record, we found an error in the amount of court costs in the judgment.
We have the authority to reform a judgment in an Anders appeal and to affirm the judgment as
reformed. See TEX. R. APP. P. 43.2(b); Bray v. State, 179 S.W.3d 725, 726 (Tex. App.—Fort
Worth 2005, no pet.) (en banc).
         The imposition of court costs upon a criminal defendant is a “nonpunitive recoupment of
the costs of judicial resources expended in connection with the trial of the case.” Johnson v. State,
423 S.W.3d 385, 390 (Tex. Crim. App. 2014). In reviewing the assessment of court costs, we
review the record to determine whether there is a basis for the costs. Id.
         In this case, the final judgment imposes $328.00 in court costs. A bill of costs lists the
name and amount of each cost and includes a $34.00 DNA testing fee. The code of criminal
procedure provides that a person must pay a court cost of $34.00 for DNA testing when he is
placed on community supervision. TEX. CODE CRIM. PROC. ANN. art. 102.020(a)(3) (West 2018).
Here, because Appellant was not placed on community supervision, we find no basis in the record
for the $34.00 DNA testing fee.
         We have the authority to correct a trial court’s judgment to make the record speak the truth
when we have the necessary data and information. Asberry v. State, 813 S.W.2d 526, 529 (Tex.
App.—Dallas 1991, pet. ref’d). Because we have the necessary data and information to correct
the amount of court costs in this case, we conclude that the judgment should be modified to reflect
that the court costs are $294.00. See id.; TEX. R. APP. P. 43.2(b).




         1
           In compliance with Kelly v. State, Appellant’s counsel provided Appellant with a copy of the brief, notified
Appellant of his motion to withdraw as counsel, informed Appellant of his right to file a pro se response, and took
concrete measures to facilitate Appellant’s review of the appellate record. 436 S.W.3d 313, 319 (Tex. Crim. App.
2014). Appellant was given time to file his own brief. The time for filing such a brief expired and no pro se brief was
filed.


                                                          2
                                                  CONCLUSION
         As required by Anders and Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991),
Appellant’s counsel moved for leave to withdraw. See also In re Schulman, 252 S.W.3d 403, 407
(Tex. Crim. App. 2008) (orig. proceeding). We carried the motion for consideration with the
merits. Having done so, we agree with Appellant’s counsel that the appeal is wholly frivolous.
Accordingly, we grant counsel’s motion for leave to withdraw. We modify the trial court’s
judgment to reflect that Appellant’s court costs are $294.00 and affirm the judgment as modified.
         Appellant’s counsel has a duty to, within five days of the date of this opinion, send a copy
of the opinion and judgment to Appellant and advise him of his right to file a petition for
discretionary review. See TEX. R. APP. P. 48.4; In re Schulman, 252 S.W.3d at 411 n.35. Should
Appellant wish to seek review of these cases by the Texas Court of Criminal Appeals, he must
either retain an attorney to file a petition for discretionary review on his behalf or he must file a
pro se petition for discretionary review. Any petition for discretionary review must be filed within
thirty days from either the date of this opinion or the date that the last timely motion for rehearing
was overruled by this Court. See TEX. R. APP. P. 68.2. Any petition for discretionary review must
be filed with the Texas Court of Criminal Appeals. See TEX. R. APP. P. 68.3(a). Any petition for
discretionary review should comply with the requirements of Rule 68.4 of the Texas Rules of
Appellate Procedure. See In re Schulman, 252 S.W.3d at 408 n.22.
Opinion delivered May 22, 2019.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                             (DO NOT PUBLISH)



                                                          3
                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                             MAY 22, 2019


                                         NO. 12-18-00225-CR


                                       ADRIAN FLOURNOY,
                                            Appellant
                                               V.
                                      THE STATE OF TEXAS,
                                            Appellee


                                  Appeal from the 7th District Court
                         of Smith County, Texas (Tr.Ct.No. 007-0020-18)

                       THIS CAUSE came to be heard on the appellate record and brief filed
herein, and the same being considered, it is the opinion of this court that there was an error in the
judgment.
                       It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be modified to reflect $294.00 in court costs, and in all other things affirmed,
and that this decision be certified to the court below for observance.
                    By per curiam opinion.
                    Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J.
