                                       NO. 07-11-0045-CR

                                 IN THE COURT OF APPEALS

                         FOR THE SEVENTH DISTRICT OF TEXAS

                                          AT AMARILLO

                                             PANEL C

                                          JULY 27, 2012

                             ______________________________


                               DIANNE HOPKINS, APPELLANT

                                                  V.

                             THE STATE OF TEXAS, APPELLEE


                          _________________________________

           FROM THE 119TH DISTRICT COURT OF TOM GREEN COUNTY;

             NO. B-10-0068-SA; HONORABLE BEN WOODWARD, JUDGE

                            _______________________________

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.


                                   MEMORANDUM OPINION


       Following a plea of not guilty, Appellant, Dianne Hopkins, was convicted by a jury

of murder, with special findings of sudden passion and use of a firearm. Punishment

was assessed at twenty years confinement. In presenting this appeal, counsel has filed

an Anders1 brief in support of a motion to withdraw. We modify a portion of the trial


1
Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).
court's judgment, grant counsel=s motion to withdraw, and affirm the judgment as

modified.


                                        FACTUAL BACKGROUND


       At the time of the offense, Appellant was sixty years old, disabled, lived alone

and suffered from various medical conditions. The deceased was a young woman in

her twenties. Both of them lived in the same trailer park and were hostile toward each

other due to a prior altercation that occurred in February 2009. During that altercation

the deceased allegedly assaulted Appellant, requiring a visit to the emergency room,

after Appellant kicked the deceased's car.


       On the morning of September 22, 2009, the deceased was driving with her

children down the dirt road exiting the trailer park when a sprinkler hanging from

Appellant's fence sprayed her in the face.                    The deceased backed her car into

Appellant's driveway, exited the car and went to Appellant's front door to complain about

the sprinkler. According to Appellant's statement,2 since the February assault she lived

in fear of the deceased and customarily answered the door armed with a .38 revolver

and pepper spray. According to a witness, the deceased repeatedly beat on the door,

shouted obscenities and ordered Appellant to open the door. Although the evidence is

conflicting as to what transpired between the two when Appellant finally opened the




2
Appellant did not testify during the guilt/innocence phase of the trial.

                                                      2
door,3 the end result was that Appellant shot the deceased in the left side of her chest.

Both Appellant and a neighbor immediately called 911.


        Evidence presented at trial demonstrated that Appellant and the deceased were

both confrontational people. There was also testimony that each had made threats

against the other. Defense counsel tried the case under a theory of self-defense and

the jury was properly charged.           The jury, however, rejected that theory and found

Appellant guilty of murder.          During the punishment phase of trial, evidence was

presented that Appellant acted with sudden passion arising from an adequate cause.4

The jury answered Appellant's sudden passion issue in the affirmative and assessed

her punishment at twenty years confinement.


                            ANDER'S BRIEF AND MOTION TO WITHDRAW


        In support of his motion to withdraw, Appellant's counsel certifies he has

conducted a conscientious examination of the record and, in his opinion, the record

reflects no potentially plausible basis to support an appeal. Anders v. California, 386

U.S. 738, 744-45, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); In re Schulman, 252 S.W.3d

403, 406 (Tex.Crim.App. 2008). Counsel candidly discusses why, under the controlling

authorities, the appeal is frivolous.            See High v. State, 573 S.W.2d 807, 813

(Tex.Crim.App. 1978).           Counsel has demonstrated he has complied with the

3
 In her 911 call, Appellant states the deceased was attempting to grab her. A witness and friend of the
deceased testified that Appellant opened the door just three or four inches with no conversation and shot
the deceased.
4
 If at the punishment stage, a defendant raises the issue of sudden passion and proves the issue in the
affirmative by a preponderance of the evidence, the offense is a second degree felony. Tex. Penal Code
Ann. § 19.02(d) (West 2011).
                                                    3
requirements of Anders and In re Schulman by (1) providing a copy of the brief to

Appellant, (2) notifying her of the right to file a pro se response if she desired to do so,

and (3) informing her of the right to file a pro se petition for discretionary review. In re

Schulman, 252 S.W.3d at 408.5 By letter, this Court granted Appellant an opportunity to

exercise her right to file a response to counsel=s brief, should she be so inclined. Id. at

409 n.23. Appellant did file a response. The State filed a letter brief agreeing with the

trial court's judgment and indicating it would not be filing a response on the merits.


                                                ANALYSIS


        A person is guilty of murder if he or she intentionally or knowingly causes the

death of an individual. Tex. Penal Code Ann. § 19.02(b) (West 2011). Upon the law of

self-defense, a person is justified in using force against another when and to the degree

the actor reasonably believes the force is immediately necessary to protect himself or

herself against the other's use or attempted use of unlawful force. Id. at § 9.31(a). Self-

defense does not justify the use of force against another in response to verbal

provocation alone. Id. at § 9.31(b)(1).              The sine qua non of self-defense is the

defendant's subjective state of mind.                    Smith v. State, 676 S.W.2d 584, 585

(Tex.Crim.App. 1984).




5
 Notwithstanding that Appellant was informed of her right to file a pro se petition for discretionary review
upon execution of the Trial Court=s Certification of Defendant=s Right of Appeal, counsel must comply with
Rule 48.4 of the Texas Rules of Appellate Procedure which provides that counsel shall within five days
after this opinion is handed down, send Appellant a copy of the opinion and judgment together with
notification of her right to file a pro se petition for discretionary review. In re Schulman, 252 S.W.3d at
408 n.22 & at 411 n.35.

                                                     4
      Murder is a first degree felony punishable by confinement for life or for any term

of not more than 99 years or less than 5 years. Id. at § 12.32(a). If, however, during

the punishment stage of a murder trial, the defendant raises the issue of sudden

passion arising from an adequate cause and proves that issue in the affirmative by a

preponderance of the evidence, the crime is punishable as a second degree felony with

a maximum sentence of twenty years confinement. Id. at §§ 19.02(d) and 12.33(a).

The core concept of "sudden passion" is that at the moment of the killing the actor's

mental state rendered him or her incapable of rational thought and collected action.

See Perez v. State, 323 S.W.3d 298, 305 (Tex.App.--Amarillo 2010, pet. ref'd). See

also Swearingen v. State, 270 S.W.3d 804, 820 (Tex.App.--Austin 2008, pet. ref'd).

While sudden passion doesn't justify the actor's conduct, it may ameliorate the

appropriate punishment.


      Here, Appellant was given an appropriate self-defense charge which the jury

considered and rejected. The jury was also properly instructed on the law pertaining to

sudden passion, which it accepted.


      By the Anders brief counsel raises three arguable issues, to-wit: (1) sufficiency of

the evidence to support the conviction; (2) sufficiency of the evidence to prove that

Appellant did not act in self-defense; and (3) ineffectiveness of trial counsel. Counsel

then analyzes the potential issues and concludes they have no merit. We agree. We

have also made a thorough and independent review of the record and we find no other

potentially plausible basis to support an appeal.


                                            5
                                           PRO SE RESPONSE


        When we have an Anders brief by counsel and a pro se response by an

appellant, we have two choices. We may determine that the appeal is wholly frivolous

and issue an opinion explaining that we have reviewed the record and find no reversible

error, Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex.Crim.App. 2005) (citing Anders,

386 U.S. at 744); or we may determine that arguable grounds for appeal exist and

remand the cause to the trial court so that new counsel may be appointed to brief

issues. Id. (citing Stafford v. State, 813 S.W.2d 503, 510 (Tex.Crim.App. 1991)).


        We have independently examined the entire record to determine whether there

are any non-frivolous issues which might support the appeal. See Penson v. Ohio, 488

U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988); In re Schulman, 252 S.W.3d at 409;

Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim.App. 1991). We have found no such

issues. See Gainous v. State, 436 S.W.2d 137 (Tex.Crim.App. 1969). After reviewing

the record, counsel=s brief, and Appellant=s pro se response, we agree with counsel that

there are no plausible grounds for appeal. See Bledsoe, 178 S.W.3d at 824.


                                            ATTORNEY'S FEES


        We do note, however, a clerical issue not raised by Appellant regarding the

assessment of attorney's fees.6 The Bill of Costs reflects that Appellant owes $500 in

court-appointed attorney's fees and the judgment reflects that Appellant owes court

6
 When a defendant appeals his conviction, courts of appeals have jurisdiction to address any error in that
case. Pfeiffer v. State, 363 S.W.3d 594, 599 (Tex.Crim.App. 2012). Where, as here, the error appears
on the face of the judgment and does not involve the merits of the criminal trial, but instead addresses the
clerical correctness of the judgment, we find that the interest of justice dictates that we address the issue.
                                                      6
costs in accordance with that bill. In order to assess attorney's fees in a judgment, a

trial court must determine the defendant has financial resources that enable him or her

to offset in part or in whole the costs of legal services provided. Tex. Code Crim. Proc.

Ann. art. 26.05(g) (West Supp. 2011).      Furthermore, the record must reflect some

factual basis to support that determination. Barrera v. State, 291 S.W.3d 515, 518

(Tex.App.--Amarillo 2009, no pet.); Perez v. State, 280 S.W.3d 886, 887 (Tex.App.--

Amarillo 2009, no pet.). The record in this case does not contain any evidence to

support such a determination. Therefore, we conclude that the inclusion of attorney's

fees in the court ordered costs was improper. See Mayer v. State, 309 S.W.3d 552,

555-56 (Tex.Crim.App. 2010). When the evidence does not support an order to pay

attorney's fees, the proper remedy is to delete the order. Id. at 557. Accordingly, we

modify the judgment to delete the order that Appellant pay $500 in court-appointed

attorney's fees.


                                      CONCLUSION


       Counsel's motion to withdraw is granted and as modified, the trial court=s

judgment is affirmed.


                                                Patrick A. Pirtle
                                                     Justice


Do not publish.




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