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


                  No. 06-15-00007-CR



        THOMAS LANCE BELONEY, Appellant

                           V.

           THE STATE OF TEXAS, Appellee



         On Appeal from the 71st District Court
               Harrison County, Texas
              Trial Court No. 14-0158X




      Before Morriss, C.J., Moseley and Burgess, JJ.
       Memorandum Opinion by Justice Moseley
                                MEMORANDUM OPINION
       Thomas Lance Beloney, charged with the third degree felony offense of driving while

intoxicated (DWI), third or more, entered an open plea of guilty to the offense and a plea of “true”

to two felony enhancements, thereby elevating the punishment range to that of a second degree

felony. See TEX. PENAL CODE ANN. § 12.42(a) (enhanced punishment range), § 49.09(b) (third

degree felony) (West Supp. 2014). After the trial court received the stipulation of evidence and

Beloney’s judicial confession, the court sentenced Beloney to eighteen years’ imprisonment.

       Beloney’s appellate counsel filed a brief that outlined the procedural history of the case,

provided a detailed summary of the evidence elicited during the course of the trial court

proceedings, and stated that counsel found no meritorious issues to raise on appeal. 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 on appeal. See Anders v.

California, 386 U.S. 738, 743–44 (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 also filed a motion

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

       On March 11, 2015, counsel mailed Beloney a copy of the brief, the complete appellate

record, and a copy of his motion to withdraw. By letter, counsel informed Beloney of his right to

review the record and file a pro se response. Counsel further informed Beloney that any pro se

response was due within thirty days of March 11, 2015. Beloney has neither filed a pro se response

nor requested an extension of time in which to do so.




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       However, we note that in Anders cases, appellate courts “have the authority to reform

judgments and affirm as modified in cases where there is non reversible 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 have identified three errors in the

judgment that must be corrected through modification.

       (1)     The judgment recites that the offense of conviction is a second degree felony when,

in fact, it is a third degree felony—only the punishment range was equivalent to that of a second

degree felony, due to enhancement.

       (2)     The judgment also recites that Beloney did not enter a plea (the judgment simply

lists “N/A”) to the two enhancement paragraphs alleged by the State, when, in fact, Beloney pled

true to the allegations of each of these enhancement paragraphs.

       (3)     Finally, in the space where the trial court would typically memorialize an

assessment of attorney fees, the judgment contains the letters “TBD.”

       While there is nothing in the judgment that directly indicates the meaning of TBD, it is

reasonable to assume those letters indicate that the amount of attorney fees assessed against

Beloney will be determined at some later time. The record indicates that Beloney was indigent at

trial and that he remains so on appeal. “A defendant who is determined by the court to be indigent

is presumed to remain indigent for the remainder of the proceedings in the case unless a material

change in the defendant’s financial circumstances occurs.” TEX. CODE CRIM. PROC. ANN. art.

26.04(p) (West Supp. 2014); see Cates v. State, 402 S.W.3d 250, 251 (Tex. Crim. App. 2013). An

assessment of attorney fees against an indigent defendant that leaves the actual amount of the

assessment to be determined at some point in the future is improper. Article 26.05(g) of the Texas

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Code of Criminal Procedure “requires a present determination of financial resources and does not

allow speculation about possible future resources.” Cates, 402 S.W.3d at 252.

         We have determined that this appeal is, in all other respects, wholly frivolous and that no

reversible error exists. We have independently reviewed the clerk’s record and the reporter’s

record, and we agree that no arguable issues support an appeal. See Bledsoe v. State, 178 S.W.3d

824, 826–27 (Tex. Crim. App. 2005).

         We, therefore, modify the judgment (1) to reflect that the offense of conviction was a third

degree felony offense, (2) to reflect that Beloney pled true to the allegations of the two

enhancement paragraphs, and (3) by deleting the letters “TBD” and substituting an assessment of

$0.00 for attorney fees.

         We affirm the judgment, as modified.1




                                                         Bailey C. Moseley
                                                         Justice

Date Submitted:             May 19, 2015
Date Decided:               May 22, 2015

Do Not Publish




1
 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 appellant in this case. Anders, 386 U.S. at 744. No substitute counsel will
be appointed. Should appellant wish to seek further review of this case by the Texas Court of Criminal Appeals,
appellant must either retain an attorney to file a petition for discretionary review or appellant must file a pro se petition
for discretionary review. Any petition for discretionary review must be filed within thirty days from either the date
of this opinion or the date on which the last timely motion for rehearing was overruled by this Court. See TEX. R.
APP. 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 requirements of
Rule 68.4 of the Texas Rules of Appellate Procedure. See TEX. R. APP. P. 68.4.
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