             In the
        Court of Appeals
Second Appellate District of Texas
         at Fort Worth
     ___________________________

          No. 02-17-00331-CR
     ___________________________

  DANIEL YOUNGBLOOD, Appellant

                    V.

         THE STATE OF TEXAS


  On Appeal from the 355th District Court
          Hood County, Texas
        Trial Court No. CR13611


  Before Pittman, Gabriel, and Womack, JJ.
     Per Curiam Memorandum Opinion
                           MEMORANDUM OPINION

          After seeing dashcam footage of law enforcement pulling a baggie of what

appeared to be methamphetamine from Appellant’s pocket and after hearing a DPS

forensic chemist testify that the substance was in fact 2.24 grams of

methamphetamine, a jury convicted Appellant Daniel Youngblood of the possession

of one or more but less than four grams of that controlled substance and assessed his

punishment at ten years’ confinement.          See Tex. Health & Safety Code Ann.

§§ 481.102(6) (providing methamphetamine is a Penalty Group 1 controlled

substance), .115(a), (c) (providing possession of one or more but less than four grams,

including adulterants or dilutants, is a third-degree felony); Tex. Penal Code Ann.

§ 12.34(a) (providing range of confinement for third-degree felony is two to ten

years).     The trial court sentenced him accordingly.    Appellant’s court-appointed

appellate counsel has filed a motion to withdraw as counsel and a brief in support of

that motion. Counsel’s brief and motion meet the requirements of Anders v. California

by presenting a professional evaluation of the record and demonstrating why there are

no arguable grounds for relief. 386 U.S. 738, 87 S. Ct. 1396 (1967); see In re Schulman,

252 S.W.3d 403, 406–12 (Tex. Crim. App. 2008) (orig. proceeding) (analyzing the

effect of Anders). In his amended pro se response to the Anders brief filed December

27, 2018, Appellant alleges ineffective assistance of trial counsel, violations of his

rights to due process and compulsory process, and judicial bias. He also complains of

the second denial of a motion to suppress and the alleged absence of library access

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before trial, an issue he raised unsuccessfully in a mandamus petition filed in the

Supreme Court of Texas. See In re Youngblood, No. 17-0555 (Tex. Aug. 25, 2017) (orig.

proceeding) (summary denial).

      The State did not file a brief in response to the Anders brief.

      After an appellant’s court-appointed counsel files a motion to withdraw on the

ground that the appeal is frivolous and fulfills the requirements of Anders, this court

must independently examine the record to see if any arguable ground may be raised

on his behalf. See Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991). We

also consider the briefs and any pro se response. See Schulman, 252 S.W.3d at 408–09.

Only after we conduct our own examination to determine whether counsel has

correctly assessed the case may we grant her motion to withdraw. See Penson v. Ohio,

488 U.S. 75, 82–83, 109 S. Ct. 346, 351 (1988).

      We have carefully reviewed counsel’s brief, the record, and Appellant’s

response to the Anders brief.

      In our independent review of the record, we discovered that the amended bill

of costs includes some costs not supported by the record. First, the amended bill of

costs includes a capias warrant fee of $50. Appellant was arrested as the result of a

traffic stop, not a warrant. The statute governing fees for services of peace officers

provides that a defendant convicted of a felony shall pay $50 for the executing or

processing of an issued arrest warrant or capias but only $5 for a warrantless arrest.

See Tex. Code Crim. Proc. Ann. art. 102.011(a)(1)–(2). We therefore modify the trial

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court’s judgment, the incorporated order to withdraw funds, and the amended bill of

costs to delete $45 for this discrepancy. See, e.g., Gonzalez v. State, No. 02-17-00373-

CR, 2019 WL 983699, at *2 (Tex. App.—Fort Worth Feb. 28, 2019, no pet.) (mem.

op., not designated for publication) (holding same in similar Hood County case).

      Second, the amended bill of costs includes a $90 fee for conveying out-of-county

witnesses. Article 102.011(c) of the Texas Code of Criminal Procedure provides,

      If an officer attaches a witness on the order of a court outside the
      county, the defendant shall pay $10 per day or part of a day spent by the
      officer conveying the witness and actual necessary expenses for travel by
      the most practical public conveyance. In order to receive expenses
      under this subsection, the officer must make a sworn statement of the
      expenses and the judge issuing the attachment must approve the
      statement.

Tex. Code Crim. Proc. Ann. art. 102.011(c). The record does not contain an officer’s

sworn statement of judge-approved expenses. See id.; Gonzalez, 2019 WL 983699, at

*2–3. We therefore modify the trial court’s judgment, the incorporated order to

withdraw funds, and the amended bill of costs to delete this $90 fee. See Gonzalez,

2019 WL 983699, at *2–3.

      Third, the amended bill of costs provides no restitution, no evidence supports a

restitution award, and no restitution was pronounced at sentencing. See, e.g., Milligan v.

State, No. 02-16-00035-CR, 2016 WL 6123643, at *2 & n.2 (Tex. App.—Fort Worth

Oct. 20, 2016, no pet.) (mem. op., not designated for publication). But the amended

bill of costs charges a restitution installment fee of $12. Because no restitution was

ordered, we delete the restitution installment fee from the trial court’s judgment, the

                                            4
incorporated order to withdraw funds, and the amended bill of costs. See Tex. Code

Crim. Proc. Ann. art. 42.037(g)(1); Gonzalez, 2019 WL 983699, at *2.

      Fourth, the amended bill of costs reflects that Appellant was charged $180 for

the summoning of witnesses.        Article 102.011 of the Texas Code of Criminal

Procedure provides that a defendant convicted of a felony or misdemeanor shall pay

$5 for a peace officer’s summoning of a witness. Tex. Code Crim. Proc. Ann. art.

102.011(a)(3). The trial court’s clerk’s record, as supplemented, contains only thirteen

subpoenas. We therefore modify the witness-summoning fee to $65 in the trial

court’s judgment, the incorporated order to withdraw funds, and the amended bill of

costs. See id.; Robles v. State, No. 01-16-00199-CR, 2018 WL 1056482, at *6 (Tex.

App.—Houston [1st Dist.] Feb. 27, 2018, pet. ref’d) (mem. op., not designated for

publication); Frazier v. State, No. 06-17-00035-CR, 2017 WL 3430907, at *1 (Tex.

App.—Texarkana Aug. 10, 2017, no pet.) (mem. op., not designated for publication).

      Except for these improperly imposed fees, we agree with counsel that this

appeal is wholly frivolous and without merit; we find nothing in the record before us

that arguably might support an appeal. See Bledsoe v. State, 178 S.W.3d 824, 827–

28 (Tex. Crim. App. 2005); see also Meza v. State, 206 S.W.3d 684, 685 n.6 (Tex. Crim.

App. 2006).

      Having modified the trial court’s judgment, the incorporated order to withdraw

funds, and the amended bill of costs to delete a cumulative total of $262—$45 for the

warrant fee, $90 for the out-of-county conveyances, $12 for the restitution installment

                                           5
fee, and $115 for summoning witnesses—leaving total amended costs at $424 without

considering any payment by Appellant, we grant counsel’s motion to withdraw and

affirm as modified the trial court’s judgment and the order to withdraw funds

incorporated therein. See Bray v. State, 179 S.W.3d 725, 726 (Tex. App.—Fort Worth

2005, no pet.) (holding that an appellate court has authority to modify a judgment in

an Anders appeal).



                                                    Per Curiam

Do Not Publish
Tex. R. App. P. 47.2(b)

Delivered: June 27, 2019




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