

NO. 07-10-0335-CR
 
IN THE COURT OF APPEALS
 
FOR THE
SEVENTH DISTRICT OF TEXAS
 
AT
AMARILLO
 
PANEL E
 
 AUGUST 19, 2011

 
 

 
BRANDON MICHAEL PENNINGTON, APPELLANT
 
v.
 
THE STATE OF TEXAS, APPELLEE 

 
 

 
 FROM THE 181ST DISTRICT
COURT OF POTTER COUNTY;
 
NO. 43,164-B; HONORABLE JOHN B. BOARD, JUDGE

 
 

 
Before QUINN, C.J., and PIRTLE, J., and BOYD, S.J.[1]
 
 
MEMORANDUM OPINION
            Appellant, Brandon
Michael Pennington, appeals from a judgment revoking his deferred adjudication
community supervision, adjudicating him guilty of the offense of intentionally
and knowingly possessing a controlled substance, methamphetamine, in an amount
of 200 grams or more but less than 400 grams by aggregate weight and sentencing
him to fifty years confinement.[2]  Appellant's attorney filed a brief in
compliance with Anders v. California,
386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and certifies there are no
non-frivolous issues to appeal.  Agreeing
with appointed counsel's conclusion that the record fails to show any arguably
meritorious issue that could support the appeal, we affirm the trial court's
judgment. 
            In December
2000, Appellant was indicted for possession of a controlled substance,
methamphetamine, in an amount of 200 grams or more but less than 400 grams by
aggregate weight.  In June 2001, pursuant
to a plea agreement, Appellant pleaded guilty as charged in the indictment, and
received deferred adjudication community supervision for a period of ten years
and a $10,000.00 fine.  Appellant's
deferred adjudication was conditioned on his compliance with the specified
terms and conditions of the trial court's Order
Deferring Adjudication And Placing [Appellant] On
Community Supervision.
             In April 2010, the State filed a Motion to Proceed with Adjudication of Guilt
on Original Charge alleging three violations of the terms of Appellant's
deferred adjudication community supervision. 
In July 2010, the State filed an Amended
Motion to Proceed with Adjudication of Guilt on Original Charge (Motion)
adding two additional violations of the terms of Appellant's deferred
adjudication community supervision.  This
Motion was heard by the trial court in July 2010.  At the hearing, the State waived two
allegations and Appellant pled "true" to the remaining three
allegations.  Thereafter, the trial court
heard evidence from three deputies of the Potter County Sheriff's Office,
Appellant's Probation Officer and Appellant. 

            Based on Appellant's pleas of
"true" and the evidence provided at the hearing, the trial court
revoked Appellant's community supervision, adjudicated him guilty of possession
of a controlled substance as alleged in the December 2000 indictment and
assessed his punishment at fifty years confinement.  The trial court certified Appellant's right
to appeal, and he timely filed a notice of appeal.
            Thereafter, Appellant's appointed
appellate counsel filed a motion to withdraw certifying that he has conducted a
conscientious examination of the record and, in his opinion,
the record reflects no potentially plausible basis to support an appeal.  Anders, 386 U.S. at 744-45; In
re Schulman, 252 S.W.3d 403, 406 (Tex.Crim.App. 2008).  Counsel candidly discusses why, under
controlling authorities, the appeal is frivolous.  See
High v. State, 573 S.W.2d 807, 813 (Tex.Crim.App.
1978).  Counsel has also demonstrated
that he has complied with the requirements of Anders and In re Schulman
by (1) providing a copy of the brief to Appellant, (2) notifying him of his
right to file a pro se response if he
desired to do so, and (3) informing him of his right to file a pro se petition for discretionary
review.  In re Schulman, 252 S.W.3d at 408.[3]  Appellant did file a pro se response to his counsel's brief.[4]  The State filed no response to either Appellant's
brief or pro se response.
             By his Anders
brief, counsel raises two arguable issues. 
Counsel questions (1) whether Appellant's trial counsel was ineffective
because he permitted Appellant to plead "true" to three of the
State's allegations and (2) whether the trial court had jurisdiction to
consider the State's Motion.  Counsel
then candidly reviews each arguable issue and explains why no reversible error
is presented.  
            When we have an Anders brief by counsel and a pro
se response by an appellant, we have two choices.  We may determine that the appeal is wholly
frivolous and issue an opinion explaining that we have reviewed the record and
find no reversible error; Bledsoe v.
State, 178 S.W.3d 824, 826-27 (Tex.Crim.App. 2005) (citing Anders, 386 U.S. at 744), or, we may
determine that arguable grounds for appeal exist and remand the cause to the
trial court so that new counsel may be appointed to brief issues.  Id.
(citing Stafford v. State, 813 S.W.2d
503, 510 (Tex.Crim.App. 1991)). "Only after the issues have been briefed
by new counsel may a court of appeals address the merits of the
issues."  178
S.W.3d at 827. 
            We have reviewed counsel's arguments
and we have independently examined the entire record to determine whether there
are any non-frivolous issues which might support the appeal.  See
Penson v. Ohio, 488 U.S. 75, 80, 109 S.Ct. 346, 102 S.Ct. 346, 102 L.Ed.2d
300 (1988); In re Schulman, 252
S.W.3d at 409; Stafford v. State, 813
S.W.2d 503, 511 (Tex.Crim.App. 1991).  We
have found no such issues.  See Gainous v. State, 436
S.W.2d 137, 138 (Tex.Crim.App. 1969). 
After reviewing the record, counsel's brief and Appellant's pro se response, we find nothing in the
record that might arguably support the appeal. 
See Bledsoe,
178 S.W.3d at 826-27 (holding that it is constitutional error for an appellate
court to address nonmeritorious arguments raised in a pro se response to an Anders
brief).
            Here, the record provides no reason
to doubt that Appellant freely, knowingly, and voluntarily entered his plea of
"true" to three allegations contained in the State's Motion.  A plea of "true" to even one
allegation in the State's Motion is sufficient to support a judgment revoking
community supervision.  Cole v. State, 578 S.W.2d
127, 128 (Tex.Crim.App. 1979); Lewis v.
State, 195 S.W.3d 205, 209 (Tex.App.--San Antonio 2006, pet. denied).
            In addition, we note that the
judgment adjudicating guilt contains language ordering the Appellant to pay
court costs in accordance with an attached Bill
of Costs, which includes attorney's fees of $1,200.00.[5]  Court costs and the assessment of attorney's
fees pursuant to article 26.05(g) of the Texas Code of Criminal Procedure, as
reflected in a certified bill of costs, are effective regardless of whether or
not they were orally pronounced in open court or specifically stated in the
judgment.  Armstrong v. State, 340 S.W.3d 759,
766-67 (Tex.Crim.App. 2011).  The
assessment of attorney's fees must, however, be supported by sufficient evidence.  Without record evidence demonstrating a defendant's financial
ability to offset the costs of legal services, a trial court errs if it orders
reimbursement of court-appointed attorney's fees.  See Tex. Code Crim. Proc. Ann. art. 25.05(g) (West Supp.
2010); Mayer v. State,
309 S.W.3d 552 (Tex.Crim.App. 2010).  Here,
the record contains no evidence and no determination by the trial court that
Appellant has financial resources enabling him to pay such fees.  Accordingly, the District Clerk is ordered to
amend the Bill of Costs by deleting
the obligation to pay attorney's fees in the amount of $1,200.00.  See
Haney v. State, No. 07-09-0205-CR, 2010 Tex. App. LEXIS 7229, at *2
(Tex.App.--Amarillo Sept 1, 2010, no pet.) (mem. op., not designated for
publication) (modifying judgment by deleting order to
pay attorney's fees before affirming conviction in frivolous appeal under Anders). 

            Accordingly, counsel's motion to
withdraw is granted and the trial court's judgment is affirmed as modified by
the amended Bill of Costs.               
 
 
                                                                                                Patrick
A. Pirtle
                                                                                                      Justice  
Do not publish.




[1]John T. Boyd, Chief Justice (Ret.),
Seventh Court of Appeals, sitting by assignment.  Tex. Gov't Code Ann. § 75.002(a)(1) (West 2005).


[2]See Tex. Health
& Safety Code Ann. § 481.114(d) (West 2010).  This offense is a first degree felony punishable
by imprisonment for any term of not more than life or ninety-nine years or less
than five years and a fine not to exceed $10,000.00.  Tex. Penal Code § 12.32
(West 2011).  


[3]Notwithstanding that Appellant was
informed of his right to file a pro se
petition for discretionary review upon execution of the Trial Court's
Certification of Defendant's Right of Appeal, counsel must comply with Rule
48.4 of the Texas Rules of Appellate Procedure which provides that counsel
shall within five days after this opinion is handed down, send Appellant a copy
of the opinion and judgment together with notification of his right to file a pro se petition for discretionary
review.  Tex. R. App. P. 48.4; See In re Schulman, 252 S.W.3d at 408 n.22 & 411 n.35.


[4]By his pro se response, Appellant raises four issues.  He questions (1) whether his counsel was ineffective, (2) whether the trial court should have sua sponte ordered that Appellant
undergo a competency examination; (3) whether his sentence is excessive, (4)
whether the testimony offered by deputies of the Potter County Sheriff's
Department was biased and hearsay and (5) whether the trial court should have
held a suppression hearing.


[5]The
Clerk's Record includes a Judgment
Adjudicating Guilt, signed August 2, 2010, which references "Court
Costs: see attached," immediately followed by a Bill of Costs, dated August 6, 2010, which includes attorney's fees
in the sum of $1,200.00.


