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

          No. 02-18-00468-CR
     ___________________________

  DUSTIN RAY PELEBERG, Appellant

                    V.

         THE STATE OF TEXAS


  On Appeal from the 355th District Court
          Hood County, Texas
        Trial Court No. CR12731


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

      Appellant Dustin Ray Peleberg appeals from the trial court’s judgment

revoking his community supervision, adjudicating his guilt for aggravated assault with

a deadly weapon, sentencing him to twelve years’ confinement, and ordering him to

pay $105 in court costs. We modify the judgment to delete $15 of the total costs

assessed because the amount represents a fee that is not a statutorily authorized cost,

and we affirm the judgment as modified.

      A grand jury indicted Peleberg for the offense of aggravated assault with a

deadly weapon. See Tex. Penal Code Ann. § 22.02. Under the terms of a plea-bargain

agreement, Peleberg pleaded guilty to the offense, and the trial court deferred

adjudicating his guilt and placed him on community supervision for ten years. The

trial court also imposed a nonsuspended $1,500 fine, pursuant to the terms of the

plea-bargain agreement, and assessed court costs in the amount of $448.

      During the period of Peleberg’s community supervision, the State filed a

second amended motion to proceed with an adjudication of guilt. The State alleged

that Peleberg had violated seven conditions of his community supervision: (A)–

(C) he failed to abstain from controlled substances by testing positive for

methamphetamine on December 27, 2017; January 3, 2018; and March 7, 2018;

(D) he failed to abstain from controlled substances by testing positive for

amphetamine on March 7, 2018; (E) he failed to abstain from controlled substances

by testing positive for marijuana on March 7, 2018; (F) he failed to report to his

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community supervision officer on January 2, 2018; and (G) he failed to pay

supervision fees for December 2017. Peleberg pleaded “true” to all seven allegations.

The trial court heard evidence regarding the State’s violation allegations, found all

seven allegations to be true, and adjudicated Peleberg guilty of the underlying offense.

The trial court sentenced him to twelve years’ confinement.             The judgment

adjudicating guilt orders Peleberg to pay $105 in court costs.

      Peleberg’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,

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

Peleberg of the motion to withdraw, provided him a copy of the 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 that the appeal is frivolous, and took

concrete measures to facilitate Peleberg’s review of the appellate record. 436 S.W.3d

313, 319 (Tex. Crim. App. 2014). This court afforded Peleberg the opportunity to file

a response on his own behalf, and he did so.

      As the reviewing court, we must conduct an independent evaluation of the

record to determine whether counsel is correct in determining that the appeal is

frivolous. See Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991); Mays v.

State, 904 S.W.2d 920, 923 (Tex. App.—Fort Worth 1995, no pet.). Only then may we

                                           3
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 counsel’s brief, Peleberg’s response, and the record.

After reviewing the itemized bill of costs,1 we conclude that there is no statutory

authority authorizing the $15 assessed for “Motion to Proceed/Revoke Fee.” See

Thiebaud, 2019 WL 983747, at *2. Because “[o]nly statutorily authorized court costs

may be assessed against a criminal defendant,” we modify the judgment, the

incorporated order to withdraw funds, and the bill of costs to delete this $15 fee,

leaving total court costs of $90. See Johnson v. State, 423 S.W.3d 385, 389 (Tex. Crim.

App. 2014); Thiebaud, 2019 WL 983747, at *2; Wright v. State, No. 02-18-00352-CR,

2019 WL 311195, at *2 (Tex. App.—Fort Worth Jan. 24, 2019, no pet.) (mem. op.,

not designated for publication); see also Bray v. State, 179 S.W.3d 725, 726 (Tex. App.—

Fort Worth 2005, no pet.) (en banc) (holding that an appellate court has the authority

to modify a judgment in an Anders appeal).

      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 that arguably

might support the appeal. See Bledsoe v. State, 178 S.W.3d 824, 827–28 (Tex. Crim.


      1
        Because Peleberg did not appeal from his conviction and original sentence, the
$2,123 in costs and fines originally imposed cannot now be challenged. See Wiley v.
State, 410 S.W.3d 313, 320–21 (Tex. Crim. App. 2013); Thiebaud v. State, No. 02-18-
00173-CR, 2019 WL 983747, at *2 (Tex. App.—Fort Worth Feb. 28, 2019, no pet.)
(mem. op., not designated for publication). We therefore limit our review to only the
$105 court costs that were assessed in the judgment adjudicating guilt.

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App. 2005). Accordingly, we grant counsel’s motion to withdraw and affirm as

modified the trial court’s judgment and the order to withdraw funds incorporated

therein.

                                                 Per Curiam

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

Delivered: August 26, 2019




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