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

          No. 02-19-00040-CR
     ___________________________

      OSCAR TINAJERO, Appellant

                    V.

         THE STATE OF TEXAS


  On Appeal from the 355th District Court
          Hood County, Texas
        Trial Court No. CR13900


  Before Gabriel, Kerr, and Womack, JJ.
 Memorandum Opinion by Justice Womack
                           MEMORANDUM OPINION

      A grand jury indicted Oscar Tinajero with one first degree felony count of

fraudulent use or possession of fifty or more items of identifying information, see Tex.

Penal Code Ann. § 32.51(b)(1), (c)(4), and with one state jail felony count of

possessing less than one gram of methamphetamine, a controlled substance, see Tex.

Health & Safety Code Ann. §§ 481.102(6), .115(a)–(b). The indictment contained two

enhancement paragraphs alleging that before committing these offenses, Tinajero had

been finally convicted of two felonies.1 A jury found Tinajero guilty on both counts

and found both enhancement paragraphs to be true. The jury assessed Tinajero’s

punishment on the first count at fifty years’ confinement, and it assessed his

punishment on the second count at ten years’ confinement. The trial court sentenced

Tinajero accordingly and ordered the sentences to run concurrently. Tinajero timely

filed a notice of appeal. We affirm the methamphetamine-possession judgment,

modify the court costs assessed in the fraudulent-use-or-possession judgment (and

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

      Tinajero’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. See 386 U.S. 738,


      1
       The record discloses that both of these prior felonies were state jail felonies.


                                            2
744, 87 S. Ct. 1396, 1400 (1967). In compliance with Kelly v. State, counsel notified

Tinajero of the motion to withdraw, provided him with a copy of the Anders brief,

informed him of his right to file a pro se response, informed him of his pro se right to

seek discretionary review should this court hold the appeal is frivolous, and took

concrete measures to facilitate Tinajero’s review of the appellate record.           See

436 S.W.3d 313, 319 (Tex. Crim. App. 2014). Tinajero filed a pro se response, in

which he alleges that (1) his due-process rights were violated because both his trial

counsel and the trial court failed to adequately explain the charges to him; (2) the

appellate record is incomplete; (3) the evidence is insufficient to support his

conviction on count one; and (4) his trial counsel rendered ineffective assistance. The

State did not file any response to counsel’s Anders brief or to Tinajero’s pro se

response.

      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 In re Schulman, 252 S.W.3d 403,

408–09 (Tex. Crim. App. 2008) (orig. proceeding). 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).

                                           3
       We have carefully reviewed counsel’s brief, Tinajero’s pro se response, and the

record in this case. In that review, we discovered that some costs imposed are not

supported by the record.

       First, the trial court included a $25 “Time Payment Fee” as part of the $579 in

total court costs it assessed against Tinajero in its judgment of conviction for the

fraudulent-use-or-possession charge. As we recently observed, Section 133.103 of the

Local Government Code provides that a person convicted of a felony shall pay a fee

of $25 if he “pays any part of a fine, court costs, or restitution on or after the 31st day

after the date on which a judgment is entered assessing the fine, court costs, or

restitution.” See Prescott v. State, No. 02-17-00158-CR, 2019 WL 2635559, at *5 (Tex.

App.—Fort Worth June 27, 2019, no pet.) (mem. op., not designated for publication)

(citing Tex. Loc. Gov’t Code Ann. § 133.103(a)).           Under the language of this

provision, the $25 late-payment fee can be assessed only if the convicted party pays

any part of the fines, court costs, or restitution assessed against him more than thirty

days after the trial court entered the judgment. See Tex. Loc. Gov’t Code Ann.

§ 133.103(a); Prescott, 2019 WL 2635559, at *5. But here, the trial court included this

$25 late-payment fee in the judgment it entered, which is “before the condition triggering

the assessment of the [fee]—late payment—could have occurred.”                 See Prescott,

2019 WL 2635559, at *5. The record therefore does not support the assessment of

the $25 Time Payment Fee against Tinajero, and we accordingly modify the trial

court’s fraudulent-use-or-possession judgment and incorporated order to withdraw

                                            4
funds and the bill of costs to delete this fee. 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); see also Prescott, 2019 WL 2635559, at *5

(holding that the record did not support the assessment of a fee under Section

133.103(a) where the record demonstrated that the trial court had included the fee in

its judgment and modifying the judgment to delete the fee).

      Second, the trial court included a $150 “Capias Warrant Fee” as part of the

previously noted $579 in court costs. 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). Here, the

record shows that Tinajero’s initial arrest was a warrantless one that stemmed from a

traffic stop. No arrest warrants appear in the record for any subsequent arrest, nor do

any capiases even though Tinajero included “any [c]apias[es]” in his written

designation of documents to be included in the appellate clerk’s record. Because

Tinajero’s initial arrest was a warrantless one and no arrest warrants or capiases appear

in the record, the $150 in capias warrant fees are not supported by the record. The

fee assessed should have been a $5 warrantless arrest fee. See id. art. 102.011(a)(1).

We thus also modify the fraudulent-use-or-possession judgment and incorporated

order to withdraw funds and the bill of costs to delete $145 from the total court costs

assessed.   See Guerin v. State, Nos. 02-18-00509-CR, 02-18-00510-CR, 2019 WL

                                           5
4010361, at *2 (Tex. App.—Fort Worth Aug. 26, 2019, no pet.) (mem. op., not

designated for publication); Gonzalez v. State, No. 02-17-00373-CR, 2019 WL 983699,

at *2–3 (Tex. App.—Fort Worth Feb. 28, 2019, no pet.) (per curiam) (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 it. 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

methamphetamine-possession judgment, (3) modify the fraudulent-use-or-possession

judgment and incorporated order to withdraw funds to delete the $25 time payment

fee and $145 of the capias warrant fee, (4) affirm the fraudulent-use-or-possession

judgment as modified, and (5) modify the bill of cost in the same manner, so that it

assesses only $409 in total court costs.


                                                      /s/ Dana Womack

                                                      Dana Womack
                                                      Justice

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

Delivered: October 24, 2019




                                           6
