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

          No. 02-19-00274-CR
     ___________________________

    KYLE EVAN ALLEN, Appellant

                     V.

         THE STATE OF TEXAS


  On Appeal from the 355th District Court
          Hood County, Texas
        Trial Court No. CR14342


  Before Wallach, Birdwell, and Bassel, JJ.
    Per Curiam Memorandum Opinion
                          MEMORANDUM OPINION

      Appellant Kyle Evan Allen appeals from the trial court’s revocation of his

deferred adjudication community supervision, adjudication of his guilt, and sentence

of twenty-four months’ confinement. We agree with Appellant’s appointed appellate

counsel that this appeal is meritless as to the revocation, conviction, and sentence.

However, we modify the trial court’s judgment and incorporated order to withdraw

funds to delete an improperly assessed filing fee. We therefore affirm the trial court’s

judgment as modified.

      Appellant pled guilty pursuant to a plea bargain to possession of less than one

gram of a controlled substance (methamphetamine) in exchange for four years’

deferred adjudication, a $1500 fine, $180 in restitution, 300 hours of community

service, and substance-abuse treatment as determined by a presentence investigation.

See Tex. Health & Safety Code Ann. §§ 481.102(6), .115(a), (b); Tex. Penal Code Ann.

§ 12.35(a). The trial court followed the bargain and placed Appellant on deferred

adjudication for four years.    Less than three weeks later, he tested positive for

methamphetamine, and his community supervision officer recommended that as

additional conditions of community supervision, Appellant serve eight days in jail and

complete the TAIP1 Substance Abuse Program, an outpatient program. Appellant

agreed to the trial court’s order amending his conditions of community supervision in


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       Treatment Alternative to Incarceration Program.


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accordance with the officer’s recommendations. The order specified that Appellant’s

eight days in jail would be served on weekends from 8:00 p.m. Friday through 8:00

a.m. Monday, beginning Friday, March 22, 2019 and continuing each consecutive

weekend until all eight days were served.

       On March 29, 2019, the State filed a motion to proceed with an adjudication of

Appellant’s guilt, alleging that he violated his conditions of community supervision by

not reporting to his community supervision officer and by failing to begin his eight

days in jail on or about March 22, 2019. After a hearing, the trial court found the

allegations true, revoked Appellant’s community supervision, adjudicated his guilt, and

sentenced him to twenty-four months’ confinement, awarding him 205 days’ credit

for time served.

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

brief complying with Anders v. California, representing that there is nothing in the

record that might arguably support this 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) (analyzing the effect of Anders). Appellant had the

opportunity to file a pro se response to the Anders brief but did not do so, nor did the

State file a brief.



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      After 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). We have carefully reviewed

the record and counsel’s brief.

      After reviewing the itemized bill of costs and comparing it to the costs assessed

when Appellant was first placed on deferred adjudication community supervision, we

conclude that one amount must be deleted from the total amount charged as court

costs in the judgment before us. The district clerk charged Appellant a $15 “Motion

to Proceed/Revoke Fee.” However, we find no statutory authority for this charge.

See Eubank v. State, No. 02-18-00351-CR, 2019 WL 2635564, at *2 (Tex. App.—Fort

Worth June 27, 2019, no pet.) (mem. op., not designated for publication); Thomas v.

State, No. 02-18-00337-CR, 2019 WL 166001, at *2 (Tex. App.—Jan. 10, 2019, no

pet.) (per curiam) (mem. op., not designated for publication). We therefore modify

the trial court’s judgment and incorporated order to withdraw funds to delete the $15

filing fee. See Thomas, 2019 WL 166001, at *2.

      Except for this improperly imposed fee, 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 the 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.

                                          4
2006). We therefore grant counsel’s motion to withdraw and affirm as modified the

trial court’s judgment and incorporated order to withdraw funds. See Bray v. State, 179

S.W.3d 725, 726 (Tex. App.—Fort Worth 2005, no pet.).


                                                     Per Curiam

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

Delivered: April 30, 2020




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