                             nzH-ts
                                                              ORIGINAL
                     COURT OF CRIMINAL APPEALS

TYRONE DENARD ANDERSON           §
   APPELLANT                     §                               RECEIVED IN
   VS.
                                 s
                                 §     NO.   06-14-00074-CR
                                                               COURT OF CRIMINAL APPEALS
                                 §
THE STATE OF TEXAS               §                                 AUG 2 7 2015
  APPELLEE                       §
                                                                Abel Acosta, Clerk
                 PETITION FOR DISCRETIONARY REVIEW

              ON APPEAL FROM THE 354th DISTRICT COURT
                       HUNT COUNTY,TEXAS
                 TRIAL COURT CAUSE NUMBER 29,512
          THE HONORABLE RICHARD A. BEACOM,JR.,JUDGE PRESIDING

                                                               FILED IN
                                                     COURT OF CRIMINAL APPEALS

                                                              AUG 27 2015

                                                         Abel Acosta, Clerk




                                         TYRONE DENARD ANDERSON
                                         TDCJ #1944026
                                         BILL CLEMENTS   UNIT
                                         9601 SPUR 591
                                         AMARILLO,TEXAS 79107

                                     ORAL ARGUMENTS NOT REQUIRED
                         TABLE OF CONTENTS

TABLE OF CONTENTS                            i




INDEX OF AUTHORITIES                         i:



STATEMENTS OF THE CASE                       1




GROUNDS FOR REVIEW                               2



ARGUMENT                                     ,2-3




PRAYER                                           4




CERTIFICATE OF SERVICE                           4
                       INDEX OF AUTHORITIES

CASES

MITCHELL V.STATE,762 S.W.2d.916(TEX.APP.-SAN ANTONIO 1988)
                                                                   2




McMANN V. RICHARDSON,90 S.CT.1441,14,n.25 L.Ed.2d.763(1970).
                                                               3




STRICKLAND V. WASHINGTON,466 U.S. 688,104 S.CT. 2052,80 L.ed.
2d.674                                                         3




SAUNDERS V. STATE, 817 S.W.2d.688(TEX.CR.APP.1991)           ,3



TRAPNELL V. UNITED STATES, 725 F.2d. 151                       3




LAWS AND STATUES

TEXAS CODE OF CRIM.PRO.Art.   36.14                            2




VERNONS CODE OF CRIM.PROC.Art.      38.14                      3




                               li
                                    IN THE


                         COURT OF    CRIMINAL APPEALS

TYRONE DENARD ANDERSON                §
   APPELLANT                          §

VS.                                   §      NO. 06-14-00074-CR
                                      §
THE STATE OF TEXAS                    §
   APPELLEE                           §




                     PETITION FOR DISCRETIONARY REVIEW




TO THE HONORABLE JUSTICES   OF SAID COURT:

      COMES NOW,TYRONE DENARD ANDERSON,APPELLANT,HEREIN AND IN SUP

PORT OF THIS PETITION FOR DISCRETIONARY REVIEW WILL SHOW THIS HON

ORABLE COURT THE FOLLOWING:




                                      I.

PETITIONER IS REQUESTING THAT ORAL ARGUMENTS BE WAIVED.

                                      II.


                          STATEMENT OF THE CASE

APPELLANT WAS INDICTED FOR THE OFFENSE OF POSSESSION/MANUFACTURING

AND DELIVERY OF A CONTROLLED SUBSTANCE IN AN AMOUNT OF ONE GRAM OR

MORE BUT LESS THAN FOUR GRAMS,PENALTY GROUP ONE.APPELLANT PLED NOT

GUILTY.A JURY FOUND APPELLANT GUILTY AND PURSUANT TO THE JURY*S
FINDING OF TRUE TO THREE OF THE STATES ENHANCEMENT ALLEGATIONS,

APPELLANT WAS SENTENCED TO LIFE IN PRISON.



                                     1.
                                       III.

                               PROCEDURAL HISTORY

NOTICE OF APPEAL WAS FILED ON MARCH 27,2014. THE REPORTERS RECORD

WAS FILED ON SEPTEMBER 5,2014. Appellant's APPEAL ATTORNEY FILED
AN ANDERS BRIEF. APPELLANT THEN FILED A PRO SE BRIEF ON MARCH 9,

2015   IN THE SIXTH DISTRICT COURT OF APPEALS.THE SIXTH DISTRICT

COURT OF APPEALS AFFIRMED THE TRIAL COURT S JUDGMENT ON MAY 8,2015.

                                       IV.

                         GROUNDS FOR REVIEW.

APPELLANT CONTENDS THAT HIS     APPELLANT ATTORNEY WAS    INEFFECTIVE FOR

FAILURE TO PROPERLYriNVESTIGATE AND REVIEW THE RECORD.        COUNSEL FIL

ED AN ANDERS BRIEF OVER-LOOKING THE FACT THAT APPELLANT HAD AN AC

COMPLICE TO GIVE TESTIMONY AGAINST THE APPELLANT WHO WAS A CO-DEFEN-

DENT.THE CO-DEFENDENT WAS CHARGED WITH THE SAME CRIME AS THE APPEL

LANT,MAKING THE,CO-DEFENDANT AN ACCOMPLICE AS A MATTER OF LAW.



                                       V.

                               ARGUMENT.

THE FOURTEENTH AMENDMENT GUARANTEES A         DEFENDANT THE RIGHT TO EFFEC

TIVE ASSISTANCE OF COUNSEL ON DEFENDANTS        FIRST APPEAL.COUNSEL SHOULD

MAKE AN   INDEPENDANT   INVESTIGATION OF THE FACTS   OF THE APPELLANTS

CASE. MITCHELL vs. STATE,762 S.W.2d.916(TEX.APP.-SAN ANTONIO 1988).

APPELLANTS BROTHER,FRANK ANDERSON WAS INDICTED FOR THE SAME CHARGE

AND WAS CONSIDERED AN ACCOMPLICE AS A MATTER OF LAW.APPELLANTS TRIAL

COUNSEL FAILED TO OBJECT TO THE ACCOMPLICE WITNESS TESTIMONY AND TO

REQUEST A JURY CHARGE INSTRUCTION UNDER THE TEX.CODE OF CRIM.PROC.

ART.36.14. Attorney MADE NO WRITTEN INSTRUCTION OBJECTING OR REQUEST

ING A TRIAL COURT CHARGE.    THIS WAS CONSIDERED AN ERROR PER SE THE

STATES BRIEF.(pg.5)

                                  2.
H
    THE RIGHT TO COUNSEL IS THE RIGHT TO THE EFFECTIVE ASSISTANCE OF

    COUNSEL. McMANN V. RICHARDSON,397 U.S.759,771,n.14,90 S.CT.1441,

    1449,n.14,25 L.ED.2d.763(1970).
    AS ALL THE FEDERAL COURTS OF APPEALS HAVE NOW HELD,THE PROPER STAND

    ARD FOR ATTORNEY PERFORMANCE IS THAT OF REASONABLY EFFECTIVE ASSIS

    TANCE. SEE TRAPNELL V. UNITED STATES,725 F.2d,at 151-152.

    SO THE BENCHMARK FOR JUDGING ANY CLAIM OF INEFFECTIVENESS MUST BE

    WHETHER COUNSEL'S CONDUCT SO UNDERMINED THE PROPER FUNCTIONING OF

    THE ADVERSARIAL PROCESS THAT THE TRIAL CANNOT BE RELIED ON AS HAV

    ING PRODUCED A JUST RESULT. STRICKLAND V. WASHINGTON,466 U.S. 668,

    104 S.CT. 2052,80 L.Ed.2d. 674.

    APPELLANT S TRIAL COUNSELS FAILURE TO REQUEST THE JURY CHARGE IN

    STRUCTION OF THE TESTOMONY OF AN ACCOMPLICE WITNESS WAS OF THE DE

    GREE OF HARM, SUFFICIENTLY SERIOUS ENOUGH TO BE CLASSED AS EGREGIOUS!'
    APPELLANTS CONVICTION AND SENTENCE WAS MADE CLEARLY AND MORE PER

    SUASIVE BY THE TESTIMONY PRESENTED BY APPELLANTS BROTHER,FRANK AN

    DERSON,WHO WAS THE CO-DEFENDANT IN THIS CASE.V.C.C.P. art.38.14.
    THE EVIDENCE PRESENTED IN APPELLANTS TRIAL DEMONSTRATES THAT THE

    ACCOMPLICE TESTIMONY WAS ESSENTIAL IN HELP MAKING THE STATES CASE

    AGAINST THE APPELLANT.HAD THE JURY BEEN INFORMED THAT IT COULD NOT

    CONVICT APPELLANT WITHOUT CORROBORATION OF THE TESTIMONY GIVEN BY

    APPELLANTS BROTHER FRANK,THERES A REASONABLE PROBILITY A RATIONAL
    JURY WUOLD NOT HAVE CONVICTED APPELLANT.SEE AND cf.SAUNDERS V.

    STATE,817 S.W.2d.688 (TEX.CR.APP.1991).
    FRANK ANDERSON WAS   CONNECTED TO THE OFFENSE COMMITTED AND CHARGED.
APPELLATE COUNSEL FAILED THE APPELLANT BY FILING AN ANDERS                 BRIEF

WHEN IN FACT APPELLANT HAD A VIABLE AND APPARENT ERROR IN HIS PRO-

CEEDINDS.      THE LIKELYHOOD    OF A   COMPETENT LAWYER COMMITTING THIS       SAME

MISTAKE SHUOLD BE CONSIDERED SLIM TO NONE.(emphasis ray own)


WHEREFORE,PREMISES,CONSIDERED, APPELLANT PRAYS THIS HONORABLE COURT

GRANTS THIS PETITION FOR DISCRETIONARY REVIEW AND REVERSE AND RE

MAND APPELLANTS CONVICTION TO SHOW AN AQUITTAL,NEW PUNISHMENT AND

/OR NEW TRIAL AND ANY OTHER RELIEF THAT THE APPELLANT IS ENTITLED

TO.   IT IS    SO PRAYED.




                                                       RESPECTFULLY SUBMITTED,

                                                               Q JJjt (jI fi^jyjLte at*-
                                                          )NE D.ANDERSON #1944026
                                                       BILL CLEMENTS    UNIT
                                                       9601 SPUR 591
                                                       AMARILLO,TEXAS 79107




                                  CERTIFICATE   OF   SERVICE

I   CERTIFY THAT A    TRUE AND    CORRECT    COPY OF THE ABOVE AND FOREGOING

PETITION      FOR DISCRETIONARY REVIEW HAS      BEEN    SSNT TO THE    STATE PRO

SECUTING ATTORNEY,Mr. JEFFREY VAN HORN AT,P.O.BOX 12405,AUSTIN

TEXAS 78711,AND THE COURT OF CRIMINAL APPEALS OF TEXAS AT,P.O.BOX

12308,CAPITOL STATION,AUSTIN,TX. 78711 BY U.S.MAIL,POSTAGE PREPAID,

FIRST CLASS. ON THIS THE /*-/ DAY OF //u ftLAjfaoi5.

                                                                  jf {2/i^.elusiW^
                                                     TYRONE D.ANDERSON #1944026


                                        4.
APPENDEX




                                   In The
                         Court of Appeals
           Sixth Appellate District of Texas at Texarkana


                             No. 06-14-00074-CR




                 TYRONE DENARD ANDERSON, Appellant

                                       V.


                      THE STATE OF TEXAS, Appellee




                    On Appeal from the 354th District Court
                            Hunt County, Texas
                             Trial Court No. 29512




                 Before Morriss, C.J., Moseley and Burgess, JJ.
                  Memorandum Opinion by Justice Moseley
APPENDEX




                                MEMORANDUM OPINION

        A jury found Tyrone Denard Anderson guilty of possessionof cocaine in an amountof one

 gram or more but less than four grams, with intent to deliver. Pursuant to the jury's finding of

 "true" to three out of four of the State's enhancement allegations, Anderson was sentenced to life

 imprisonment.

        Anderson's attorney on appeal has filed a brief which states that she has reviewed the

 record and found no genuinely arguable issues that could be raised on appeal. The brief sets out

 the procedural history and summarizes the evidence elicited during the course of the proceeding.

 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, 743^14 (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. 1981); High

 v. State, 573 S.W.2d 807, 812-13 (Tex. Crim. App. [Panel Op.] 1978). Counsel has also filed a

 motion with this Court seeking to withdraw as counsel in this appeal.

        We note that in Anders cases, "appellatecourts have the authorityto reformjudgmentsand

 affirm as modified in cases where there is non reversible [sic] error." Ferguson v. State, 435

 S.W.3d 291, 294 (Tex. App.—Waco 2014, pet. struck) (comprehensively discussing appellate

 cases that have modified judgments in Anders cases). Here, we must modify the judgment by

 deleting the assessment of court-appointed attorney fees.

        Even though the record demonstrated that Anderson was indigent, the trial court's

 judgment ordered him to pay attorney fees in the amount of $5,535.00, an amount that was also
APPENDEX




 included in the trial court's bill of costs. Under Article 26.05(g) of the Texas Code of Criminal

 Procedure, a trial court has the authority to order an indigent defendant to pay court-appointed

 attorney fees only if "the court determines that [the] defendant has financial resources that enable

 him 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) (West Supp. 2014). '"[T]he defendant's

 financial resources and ability to pay are explicit critical elements in the trial court's determination

 of the propriety of ordering reimbursement of costs'" of legal services provided. Armstrong v.

 State, 340 S.W.3d 759, 765-66 (Tex. Crim. App. 2011) (quoting Mayer v. State, 309 S.W.3d 552,

 556 (Tex. Crim. App. 2010)).

         Here, the record is devoid of any determination or finding by the trial court that Anderson

 had financial resources or was otherwise able to pay his appointed attorney's fees. Thus, the

 assessment of attorney fees was erroneous and should be removed. Cates v. State, 402 S.W.3d

 250, 252 (Tex. Crim. App. 2013); see Mayer v. State, 309 S.W.3d 552 (Tex. Crim. App. 2010);

 Martin v. State, 405 S.W.3d 944, 946-47 (Tex. App.—Texarkana 2013, no pet.). Accordingly,

 we modify the trial court's judgment by deleting the assessment of attorney fees.

      . Next, in response to counsel's Anders brief, Anderson has filed a pro se response in which

 he argues (1) that the indictment was "constructively amended, in violation of his fifth amendment

 right," (2) that the evidence is legally insufficient to support the jury's finding of guilt because the

 testimony of an accomplice witness was insufficiently corroborated/(3)^hat_the trial court erred
 in failing to give the jury an accomplice witness instruction, (4) that the State's use of previous
APPENDEX




 convictions for enhancement purposes violated his double jeopardy rights, and^(5)"))hat both trial

 and appellate counsel rendered ineffective assistance.

           We have independently reviewed the entire record, as well as Anderson's pro se response

 and the State's response, and we find no reversible error. See Halbert v. Michigan, 545 U.S. 605,

 623 (2005). Therefore, with the exception of the improper assessment of court-appointed attorney

 fees, we conclude that no genuinely arguable issues support an appeal. See Bledsoe v. State, 178

 S.W.3d 824, 826-27 (Tex. Crim. App. 2005).

          We affirm the trial court's judgment, as modified.1




                                                         Bailey C. Moseley
                                                         Justice



 Date Submitted:             May 8, 2015
 Date Decided:               May 28,2015

 Do Not Publish




 'Since we agree this case presents no reversible error, we also, in accord with Anders, grant counsel's request to
 withdraw from further representation of Anderson in this case. Anders, 386 U.S. at 744. No substitute counsel will
 be appointed. Should Anderson wish to seek further review of this case by the Texas Court of Criming) l/£ffge$$, he
 must either retain an attorney to file a petition for discretionary review or file a pro sepetition foff^fgcr^^ppar^f?Y^feals
 Any petition for discretionary review must be filed within thirty days from thedate of this opinion. j^^T£^R.A?P-
 P. 68.2. Any petition for discretionary review must be filed with the clerk of the Texas Court of Criminal Appeals.
 See TEX. R. App. P. 68.3. Any petition for discretionary review should comply with the requiremerte/tof R^le^Sr/hof
 the Texas Rules ofAppellate Procedure. See Tex. R. App. P. 68.4.                                       "" *" u
                                                            4                                       Texarkana, Texas
                                                                                                 Debra K. Autrey, Clerk
