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

          No. 02-17-00373-CR
     ___________________________

   ALFREDO GONZALEZ, Appellant

                     V.

         THE STATE OF TEXAS


  On Appeal from the 355th District Court
          Hood County, Texas
        Trial Court No. CR13504


   Before Birdwell, Kerr, and Pittman, JJ.
    Per Curiam Memorandum Opinion
                          MEMORANDUM OPINION

      Alfredo Gonzalez appeals two jury convictions and sentences on a two-count

indictment for offenses occurring on the same day: (1) a conviction and sixty-year

sentence for first-degree felony possession of four or more, but less than two

hundred, grams of methamphetamine with the intent to deliver, see Tex. Health &

Safety Code Ann. §§ 481.102(6), 481.112(a), (d), and (2) a conviction and ten-year

sentence for third-degree felony unlawful possession of a firearm by a felon, see Tex.

Penal Code Ann. § 46.04. We affirm the firearm-possession judgment, modify the

court costs and restitution assessed in the methamphetamine-possession judgment

(and incorporated funds withdrawal order), and affirm that judgment as modified.

      Brief Factual Background

      A Hood County sheriff’s deputy pulled over a car1 in which Gonzalez was

riding as the only backseat passenger. Gonzalez was sitting directly behind the front

passenger. After asking the driver and passengers to exit the car and patting down the

driver and Gonzalez, the deputy found a small, personal-use baggie of

methamphetamine in Gonzalez’s pocket. He then placed Gonzalez in his patrol car’s

backseat.

      The deputy and two other officers searched the car because the inside smelled

like marijuana. They found a large package of uncut methamphetamine––in a quantity

      1
        The car’s registration had expired in 2015. The deputy also discovered that the
driver had a suspended license.


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not consistent with personal use––underneath the front passenger’s seat and a loaded

shotgun on the backseat next to where Gonzalez had been sitting. The search also

uncovered shotgun ammunition in the backseat as well as several digital scales in the

car.

       While the deputies were searching the car, Gonzalez––although handcuffed––

was able to pull his cell phone out of his pants pocket to talk to his mother. He

warned her not to say anything, let her know he was under arrest, and then asked her

to bail him out. After the deputy placed the front seat passenger in the car with

Gonzalez and walked away, Gonzalez asked her how the driver could not have told

them about the registration, and she countered, “How could you not take the blame

for your own stuff?” Gonzalez asked the passenger what the police had told her, and

she answered that they had told her that Gonzalez had put the drugs under her seat.

       Because Gonzalez had been previously convicted in Taylor County of state-jail-

felony marijuana possession, the State charged him with unlawful possession of the

shotgun by a felon as well as possession of more than four, but less than two

hundred, grams of methamphetamine with the intent to deliver. Gonzalez testified at

his trial and admitted that he had covered up the gun with a pillow when the deputy

pulled the car over, but he claimed he had just then discovered the gun’s presence

because he had been asleep in the car. He also admitted to possessing the

methamphetamine in his pocket, but he denied knowing anything about the



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methamphetamine found under the front seat. A jury convicted him of both charged

offenses and assessed his punishment for each.

       Anders Law

       Gonzalez’s appointed appellate counsel has filed a motion to withdraw and a

brief under Anders v. California, representing that this case presents no nonfrivolous

grounds for appeal. 386 U.S. 738, 744–45, 87 S. Ct. 1396, 1400 (1967). Counsel’s brief

and motion meet the requirements of Anders by presenting a professional evaluation

of the record and demonstrating why there are no arguable grounds for relief. See id.;

In re Schulman, 252 S.W.3d 403, 406–12 (Tex. Crim. App. 2008) (orig. proceeding).

Counsel also complied with the requirements set forth in Kelly v. State, 436 S.W.3d

313, 319–20 (Tex. Crim. App. 2014). Gonzalez filed a pro se response to counsel’s

brief, but the State has not filed a brief.

       Once an appellant’s court-appointed attorney files a motion to withdraw on the

ground that an appeal is frivolous and fulfills the requirements of Anders, we must

independently examine the record. See Stafford v. State, 813 S.W.2d 503, 511 (Tex.

Crim. App. 1991). Only then may we grant counsel’s motion to withdraw. See Penson v.

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

       Record Review

       We have carefully reviewed the record, counsel’s brief, and appellant’s pro se

response. Our independent review of the record reveals that although the

methamphetamine-possession judgment includes an award of $180 in restitution to

                                              4
the Department of Public Safety for the laboratory testing of the methamphetamine,

the trial judge did not verbally pronounce the restitution award on the record, nor is

there any evidence supporting the awarded amount. Accordingly, we modify the

methamphetamine-possession judgment to delete the restitution award.2 See Taylor v.

State, 131 S.W.3d 497, 500 (Tex. Crim. App. 2004) (“When there is a conflict between

the oral pronouncement of sentence and the sentence in the written judgment, the

oral pronouncement controls.”); see also Aguilar v. State, 279 S.W.3d 350, 353 (Tex.

App.––Austin 2007, no pet.) (“A trial court can also order a defendant to pay lab fees,

but only as a condition of community supervision.”). We likewise delete the $12

restitution installment fee from the methamphetamine-possession judgment3 and

accompanying bill of costs. See Tex. Code Crim. Proc. Ann. art. 42.037(g)(1)

(authorizing assessment of $12 fee if trial court orders restitution to be paid in

installments).

       The bill of costs also includes a capias warrant fee of $50. The statute

governing fees for services of peace officers requires a defendant convicted of a

felony to pay $5 when a peace officer arrests him without a warrant and $50 when a

peace officer executes or processes an issued arrest warrant or capias. See id. art.


      Although the original bill of costs included the $180 in restitution, we received
       2

an amended bill of costs which deleted that amount.

       The methamphetamine-possession judgment assessed $516 in costs, but the
       3

firearm-possession judgment did not assess any costs.


                                          5
102.011(a)(1), (2). Deputies arrested Gonzalez without a warrant as the result of a

traffic stop, and no capias appears in the record for any subsequent arrest. Applying

the governing fee statute to these facts, we hold that the bill of costs should have

assessed only a $5 fee for the arrest without a warrant. We thus also modify the

methamphetamine-possession judgment and bill of costs to delete $45 from the total

court costs assessed. See Bray v. State, 179 S.W.3d 725, 726 (Tex. App.—Fort Worth

2005, no pet.); see also Barefield v. State, No. 02-14-00336-CR, 2016 WL 551890, at *1

(Tex. App.—Fort Worth Feb. 11, 2016, pet. ref’d) (mem. op., not designated for

publication) (deleting from judgment a $50 arrest fee that was not supported by

record).

      Finally, the record does not support the $30 fee––listed in the bill of costs and

included in the methamphetamine-possession judgment––for conveying a witness to

court pursuant to an out-of-county order. The record does not contain an officer’s

sworn statement of judge-approved expenses. See Tex. Code Crim. Proc. Ann. art.

102.011(c) (requiring both to justify the imposition of this fee). We therefore modify

the methamphetamine-possession judgment and bill of costs to delete that $30 fee.

      In summary, we modify the methamphetamine-possession judgment and bill of

costs to delete $87 so that the total costs assessed are $429. We likewise modify the

order of withdrawal of funds incorporated into that judgment by reference. See Reed v.

State, No. 02-17-00199-CR, 2018 WL 6844132, at *1 (Tex. App.—Fort Worth Dec.

31, 2018, no pet.) (mem. op., not designated for publication) (per curiam); cf. Bone v.

                                          6
State, No. 02-15-00452-CR, 2016 WL 7240603, at *2 (Tex. App.—Fort Worth Dec.

15, 2016, no pet.) (mem. op., not designated for publication) (modifying bill of costs

and order to withdraw funds to delete fees not supported by record).

       Conclusion

       Except for the restitution- and cost-assessment errors described above, we

agree with counsel that this appeal is wholly frivolous and without merit; we find

nothing in the record 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). Accordingly, we (1) grant counsel’s motion to withdraw,

(2) affirm the firearm-possession judgment, (3) modify the methamphetamine-

possession judgment and incorporated order to withdraw funds to delete the $180

restitution award, $12 restitution installment fee, $30 witness conveyance fee, and $45

of the arrest fee, (4) affirm the methamphetamine-possession judgment as modified,

and (5) modify the amended bill of costs in the same manner (except for the already-

deleted restitution), so that it assesses only $429 in total court costs.

                                                         Per Curiam

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

Delivered: February 28, 2019




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