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

           No. 02-18-00509-CR
           No. 02-18-00510-CR
      ___________________________

       TRAVIS GUERIN, Appellant

                     V.

          THE STATE OF TEXAS


  On Appeal from the 355th District Court
           Hood County, Texas
   Trial Court Nos. CR13687, CR14293


Before Sudderth, C.J.; Gabriel and Womack, JJ.
  Memorandum Opinion by Justice Gabriel
                          MEMORANDUM OPINION

      A grand jury indicted Appellant Travis Guerin on one count of possession of

less than one gram of the controlled substance methamphetamine and one count of

child endangerment, both state-jail felonies, and he was later indicted in a separate

case for bail jumping, a third-degree felony.1 See Tex. Penal Code Ann. §§ 22.041(c),

(c-1), (f), (h) (child endangerment), 38.10(a), (f) (bail jumping); Tex. Health & Safety

Code Ann. §§ 481.102(6), .115(a)–(b) (methamphetamine possession). After a jury

found Guerin guilty of all three offenses, he pleaded true to the enhancement

paragraph alleged in the indictment charging bail jumping, and the jury assessed his

punishment at two years’ confinement in state jail for the child-endangerment and

drug-possession offenses and eighteen years’ confinement for bail jumping. See Tex.

Penal Code Ann. §§ 12.33, .35, .42(a). The trial court sentenced Guerin accordingly,

and he timely appealed.

      In each case, Guerin’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 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). Although Guerin

      1
       Guerin was indicted on two counts of bail jumping, but the jury was charged
only on the first count. The trial court dismissed the second count after the trial.


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was given an opportunity to file a pro se response to the Anders brief in each case, he

has not done so, nor has the State filed a responsive 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 his 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 and the record in each case. In that

review, we discovered that some costs imposed are statutorily barred or otherwise not

supported by the records.

      First, the trial court assessed duplicate court costs against Guerin. Article

102.073(a) of the code of criminal procedure provides that “[i]n a single criminal

action in which a defendant is convicted of two or more offenses or of multiple

counts of the same offense, the court may assess each court cost or fee only once

against” him. Tex. Code Crim. Proc. Ann. art. 102.073(a). This court and others have

interpreted “a single criminal action” to include a trial on multiple offenses regardless

of whether they were committed in a single criminal episode. Santoro v. State, Nos. 02-

18-00039-CR, 02-18-00040-CR, 2018 WL 3153564, at *1 (Tex. App.—Fort Worth

                                            3
June 28, 2018, no pet.) (mem. op., not designated for publication) (collecting cases).

When a trial court erroneously assesses court costs for multiple convictions tried in a

single proceeding, we retain the court costs for the offense of the highest category.

Tex. Code Crim. Proc. Ann. art. 102.073(b); Santoro, 2018 WL 3153564, at *2. We

therefore retain the court costs for Guerin’s bail jumping offense. Costs erroneously

duplicated include: the clerk’s fee, the consolidated court costs fee, the courthouse

security fee, the criminal e-filing conviction fee, the criminal technology fee, the

indigent defense services fee, the judicial support fee, the jury reimbursement fee, the

jury trial fee, the records management and preservation fee, the summoning jury fee,

and the time payment fee. Those fees total $294. Thus, in trial court cause number

CR13687 (appellate cause number 02-18-00509-CR), we modify the trial court’s

judgment and incorporated order to withdraw funds and the bill of costs to delete

$294 in duplicated court costs.

      Second, capias warrant fees were erroneously charged in both of Guerin’s cases.

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, and that the “fee . . . shall be

assessed on conviction, regardless of whether the defendant was also arrested at the

same time for another offense, and shall be assessed for each arrest made of a

defendant arising out of the offense for which [he] has been convicted.” Tex. Code

Crim. Proc. Ann. art. 102.011(a)(1)–(2), (e).

                                            4
      The record in trial court cause number CR13687 (appellate cause number 02-

18-00509-CR) indicates that Guerin was first arrested on the drug-possession and

child-endangerment charges after his home was searched pursuant to a search

warrant. There is no indication in the record that the search warrant was also a capias

or arrest warrant, and Guerin included “capias[es]” in his written designation of

documents to be included in the appellate clerk’s record. Because no warrant or

capias authorized Guerin’s initial arrest, the two $50 fees assessed for that arrest are

not supported by the record. The fees assessed should have been two $5 warrantless

arrest fees. Id. art. 102.011(a)(1). After Guerin jumped bail, arrest warrants were

issued for the drug-possession and child-endangerment charges, and he was arrested

pursuant to those active warrants. In trial court cause number CR13687 (appellate

cause number 02-18-00509-CR), we therefore modify the trial court’s judgment and

incorporated order to withdraw funds and the bill of costs to delete $90 of the

$200 capias warrant fee assessed against Guerin. 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.)

(per curiam) (mem. op., not designated for publication) (holding same in similar Hood

County case).

      In trial court cause number CR14293 (appellate cause number 02-18-00510-

CR), no arrest warrant was issued.        Although a returned precept to serve the

indictment appears in the record, the bill of costs includes a corresponding

$35 serving writ fee. See Tex. Code Crim. Proc. Ann. arts. 25.01 (providing that “[i]n

                                           5
every case of felony, when the accused is in custody, or as soon as he may be arrested,

the clerk of the court where an indictment has been presented shall immediately make

a certified copy of the same, and deliver such copy to the sheriff, together with a writ

directed to such sheriff, commanding him forthwith to deliver such certified copy to

the accused”), 102.011(a)(4) (authorizing $35 fee “for serving a writ” not specified in

that article); cf. Love v. State, No. 03-15-00462-CR, 2016 WL 1183676, at *2 (Tex.

App.—Austin Mar. 22, 2016, no pet.) (mem. op., not designated for publication)

(noting these statutes and holding trial court did not err by imposing $25 sheriff’s fee

when precept was in the record). We therefore modify the trial court’s judgment and

incorporated order to withdraw funds and the bill of costs in trial court cause number

CR14293 (appellate cause number 02-18-00510-CR) to delete $45 of the $50 capias

warrant fee assessed against Guerin. See, e.g., Gonzalez, 2019 WL 983699, at *2.

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

appeals are wholly frivolous and without merit; we find nothing in the records before

us that arguably might support these appeals. 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 and incorporated order to withdraw

funds and the bill of costs in trial court cause number CR13687 (appellate cause

number 02-18-00509-CR) to delete cumulative costs of $384—$294 for the duplicated

costs and fees and $90 for the improperly charged warrant fees—leaving total costs at

                                           6
$190 in that case, we grant counsel’s motion to withdraw in that case 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).   Having modified the trial court’s judgment and incorporated order to

withdraw funds and the bill of costs in trial court cause number CR14293 (appellate

cause number 02-18-00510-CR) to delete $45 of the improperly charged warrant fee,

leaving total costs at $334 in that case, we likewise grant counsel’s motion to withdraw

in that case and affirm as modified the trial court’s judgment and incorporated order

to withdraw funds. See Bray, 179 S.W.3d at 726.




                                                      /s/ Lee Gabriel
                                                      Lee Gabriel
                                                      Justice

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

Delivered: August 26, 2019




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