                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-16-00152-CR
                                No. 10-16-00153-CR

ANDRE-MARCO MCINTOSH,
                                                          Appellant
v.

THE STATE OF TEXAS,
                                                          Appellee


                          From the 52nd District Court
                             Coryell County, Texas
                            Trial Court No. 15-22875
                            Trial Court No. 15-22876


                          MEMORANDUM OPINION


      In two indictments and two judgments, Andre-Marco McIntosh was charged and

convicted of Continuous Sexual Abuse of a Child. See TEX. PENAL CODE ANN. § 21.02

(West 2011). He pled guilty, without the benefit of a plea bargain, to both charges and

punishment evidence was presented in one hearing before the trial court. McIntosh was

sentenced to life in prison for each offense and the sentences were ordered to run

concurrently.
        McIntosh’s appellate attorney filed Anders briefs in these appeals. See Anders v.

California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967). McIntosh was provided a

copy of the record by counsel, advised of his right to review the record, and advised of

his right to submit a response on his own behalf. McIntosh has not submitted his own

response.

        Counsel asserts in the Anders brief that counsel reviewed the reporter’s record and

clerk’s record, including the judgments and sentences, and reviewed the pleas of guilty,

the waivers signed by McIntosh, and the sufficiency of the indictment. Counsel also

reviewed the evidence presented at the punishment phase of the trial and the adequacy

of the sentences. After the review, counsel has concluded there is no non-frivolous issue

to raise in these appeals.

        Counsel's brief evidences a professional evaluation of the record for error, and we

conclude that counsel performed the duties required of appointed counsel. See Anders,

386 U.S. at 744; High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. 1978); see also In re

Schulman, 252 S.W.3d 403, 407 (Tex. Crim. App. 2008).

        In reviewing an Anders appeal, we must, "after a full examination of all the

proceedings, . . . decide whether the case is wholly frivolous." See Anders, 386 U.S. at 744;

accord Stafford v. State, 813 S.W.2d 503, 509-11 (Tex. Crim. App. 1991). An appeal is

"wholly frivolous" or "without merit" when it "lacks any basis in law or fact." McCoy v.

Court of Appeals, 486 U.S. 429, 439 n. 10, 108 S. Ct. 1895, 100 L. Ed. 2d 440 (1988).


McIntosh v. State                                                                      Page 2
Arguments are frivolous when they "cannot conceivably persuade the court." Id. at 436.

An appeal is not wholly frivolous when it is based on "arguable grounds." Stafford, 813

S.W.2d at 511.

        After reviewing counsel's briefs and the entire record in this appeal, we determine

the appeals to be wholly frivolous. See Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex. Crim.

App. 2005). We note, however, that costs were assessed in both judgments of conviction.

Where allegations and evidence of more than one offense are presented in a single trial

or plea proceeding, the trial court errs in assessing costs in each conviction. Hurlburt v.

State, Nos. 10-15-00400-CR, 10-15-00401-CR, 10-15-00402-CR, 10-15-00403-CR, 2015 Tex.

App. LEXIS 12676, *8 (Tex. App.—Waco Nov. 30, 2016, no pet. h.) (publish). Hurlburt had

not been decided at the time briefing in this case was submitted. Based on our precedent,

abatement to the trial court for the appointment of new counsel is not required. See

Ferguson v. State, 435 S.W.3d 291 (Tex. App.—Waco 2014, pet. dism.). Because this error

does not impact the determination of guilt or punishment and, therefore, does not result

in a reversal of either judgment, we may modify one of the judgments to correct the

erroneous assessment of costs.      Id.   Accordingly, the Nunc Pro Tunc Judgment of

Conviction by Court—Waiver of Jury Trial in trial court case number 15-22876 is

modified to delete the assessed court costs. We affirm the trial court’s Nunc Pro Tunc

Judgment of Conviction by Court—Waiver of Jury Trial in trial court case number 15-

22876 as modified and affirm the trial court’s Nunc Pro Tunc Judgment of Conviction by


McIntosh v. State                                                                     Page 3
Court—Waiver of Jury Trial in trial court case number 15-22875.

        Should McIntosh wish to seek further review of these cases by the Texas Court of

Criminal Appeals, he must either retain an attorney to file a petition for discretionary

review or must file a pro se petition for discretionary review. No substitute counsel will

be appointed. Any petition for discretionary review must be filed within thirty days from

the date of this opinion or the last timely motion for rehearing or timely motion for en

banc reconsideration has been overruled by this Court. See TEX. R. APP. P. 68.2. Any

petition and all copies of the petition for discretionary review must be filed with the Clerk

of the Court of Criminal Appeals. See TEX. R. APP. P. 68.3. (Tex. Crim. App. 1997, amended

eff. Sept. 1, 2011).   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. See also In re Schulman, 252 S.W.3d 403, 409 n.22 (Tex. Crim. App. 2008).

        Counsel's motions to withdraw from representation of McIntosh are granted, and

counsel is discharged from representing McIntosh.              Notwithstanding counsel’s

discharge, counsel must send McIntosh a copy of our decision, notify him of his right to

file a pro se petition for discretionary review, and send this Court a letter certifying

counsel's compliance with Texas Rule of Appellate Procedure 48.4. TEX. R. APP. P. 48.4;

see also In re Schulman, 252 S.W.3d at 409 n.22.



                                           TOM GRAY
                                           Chief Justice


McIntosh v. State                                                                      Page 4
Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed and affirmed as modified
Opinion delivered and filed January 18, 2017
Do not publish
[CRPM]




McIntosh v. State                              Page 5
