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

          No. 02-19-00186-CR
     ___________________________

     SARAH DIANE IVES, Appellant

                    V.

         THE STATE OF TEXAS


  On Appeal from the 355th District Court
          Hood County, Texas
        Trial Court No. CR13980


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

       Appellant Sarah Diane Ives appeals from the trial court’s revocation of her

community supervision, adjudication of her guilt for possession of a controlled

substance of less than one gram, methamphetamine, and imposition of a

twenty-four-month sentence. We modify the trial court’s judgment adjudicating guilt

to delete three charged costs and affirm it as modified. See Tex. R. App. P. 43.2(b).

       Ives was indicted with the intentional or knowing possession of a controlled

substance of less than one gram, methamphetamine—a state-jail felony. See Tex.

Health & Safety Code Ann. § 481.115(b); see also id. § 481.102(6). Ives and the State

entered into a plea-bargain agreement under which she agreed to plead guilty in

exchange for the State’s recommendation that an adjudication of her guilt be deferred

and that she be placed on community supervision for a period of five years. The trial

court followed the State’s recommendation and placed Ives on community

supervision for five years without adjudicating her guilt. The trial court then certified

that Ives had no right to appeal the deferred-adjudication order. See Tex. R. App. P.

25.2(a)(2).

       During the period of community supervision, the State moved to proceed to an

adjudication of Ives’s guilt based on her violations of the imposed terms and

conditions of community supervision. At the hearing on the State’s motion, Ives

pleaded true to six of the State’s violation allegations, and she pleaded not true to one

of the State’s violation allegations. Ives’s community-supervision officer testified

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regarding Ives’s failure to comply with the terms and conditions of her community

supervision and recommended that Ives go to a Substance Abuse Felony Punishment

Facility (SAFPF), or if Ives was unwilling to go to a SAFPF, that the court revoke

Ives’s community supervision. Ives testified that she did not want to go to a SAFPF.

Ives stated that she would rather “take [her] state jail time and be done with probation

and done with Hood County.” At the conclusion of the hearing, the trial court found

that Ives had violated the terms and conditions of her community supervision,

adjudicated her guilty of the indicted offense, and sentenced her to twenty-four

months’ confinement. The trial court did not orally pronounce or order restitution.

The trial court included in its judgment adjudicating guilt $1,176 in court costs; this

amount is supported by the district clerk’s subsequent itemized bill of cost. See Tex.

Code Crim. Proc. Ann. art. 103.001(b). The trial court certified that Ives had the right

to appeal from the adjudication and found that she was entitled to court-appointed

counsel on appeal. See Tex. R. App. P. 25.2(a)(2).

      Ives’s court-appointed appellate counsel has filed a motion to withdraw,

accompanied by a brief in support of that motion. In his brief, counsel states that in

his professional opinion, this appeal is frivolous and without merit. The brief and

motion present a professional evaluation of the record demonstrating why there are

no arguable grounds for relief. See Anders v. California, 386 U.S. 738, 744 (1967); Kelly

v. State, 436 S.W.3d 313, 319 (Tex. Crim. App. 2014). Neither Ives nor the State has

responded to the Anders brief or motion to withdraw.

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      Once 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 and Kelly, we

have a supervisory obligation to undertake an independent examination of the record.

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

904 S.W.2d 920, 922–23 (Tex. App.—Fort Worth 1995, no pet.). In this evaluation,

we consider the record, the arguments raised in the Anders brief, and any response

filed by the pro se appellant. See United States v. Wagner, 158 F.3d 901, 902 (5th Cir.

1998); In re Schulman, 252 S.W.3d 403, 409 (Tex. Crim. App. 2008) (orig. proceeding).

      After reviewing the itemized bill of cost, we conclude that three amounts must

be deleted from the total amount charged as court costs in the judgment. First, we

find no statutory authority authorizing the $15 assessed for “Motion to

Proceed/Revoke” in the itemized bill of cost. 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.—Fort Worth January 10, 2019, no pet.) (per curiam) (mem.

op., not designated for publication). Because “[o]nly statutorily authorized costs may

be assessed against a criminal defendant,” we must delete that amount from the costs

charged in the judgment. Johnson v. State, 423 S.W.3d 385, 389 (Tex. Crim. App. 2014)

(citing Tex. Code Crim. Proc. Ann. art. 103.002); see Thomas, 2019 WL 166001, at *2.

      Second, the $12 charged as a “Restitution Fee” is punitive in nature and must

be orally pronounced upon revocation and adjudication. See Weir v. State, 278 S.W.3d

                                           4
364, 365–66 (Tex. Crim. App. 2009); Byrne v. State, No. 02-19-00147-CR, 2019 WL

6334688, at *2 (Tex. App.—Fort Worth Nov. 27, 2019, no pet.) (mem. op., not

designated for publication); Eubank, 2019 WL 2635564, at *2; Gonzalez v. State, No.

02-17-00373-CR, 2019 WL 983699, at *2 (Tex. App.—Fort Worth Feb. 28, 2019, no

pet.) (per curiam) (mem. op., not designated for publication); Milligan v. State, No. 02-

16-00035-CR, 2016 WL 6123643, at *2 (Tex. App.—Fort Worth Oct. 20, 2016, no

pet.) (mem. op., not designated for publication); see also Tex. Code Crim. Proc. Ann.

art. 42.037(g). It was not; thus, this amount must be deleted as well.

      Third, the district clerk charged $150 as a “Capias Warrant Fee.” A $50 fee is

statutorily authorized for “executing or processing an issued . . . capias.” Tex. Code

Crim. Proc. Ann. art. 102.011(a)(2). The record reflects that one arrest capias was

ordered regarding the State’s motion to proceed with an adjudication of guilt and that

one other capias fee was charged when the trial court placed Ives on community

supervision. Thus, one charged capias fee of $50 is not supported by the record. See

Byrne, 2019 WL 6334688, at *2; Reed v. State, No. 02-17-00199-CR, 2018 WL 6844132,

at *1 (Tex. App.—Fort Worth Dec. 31, 2018, no pet.) (per curiam) (mem. op., not

designated for publication). Accordingly, we modify the trial court’s judgment and




                                           5
incorporated order to withdraw funds to deduct $77 from the ordered cost amount

for a total of $1,099.1

       Other than these minor adjustments to the charged costs, there is nothing in

the record that might arguably support the appeal. See Bledsoe v. State, 178 S.W.3d 824,

827–28 (Tex. Crim. App. 2005). Thus, we grant counsel’s motion to withdraw,

modify the judgment and the incorporated order to withdraw funds to reflect $1,099

in court costs, and affirm the trial court’s judgment as modified. See Penson v. Ohio,

488 U.S. 75, 82–83 (1988); Kelly, 436 S.W.3d at 318–19; Boone v. State, No. 02-15-

00417-CR, 2016 WL 4040563, at *2–3 (Tex. App.—Fort Worth July 28, 2016, no pet.)

(mem. op., not designated for publication).


                                                      /s/ Lee Gabriel

                                                      Lee Gabriel
                                                      Justice

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

Delivered: February 27, 2020




       1
        $1,176 (court costs awarded in the judgment) – $15 (“Motion to
Proceed/Revoke Fee”) – $12 (“Restitution Fee”) – $50 (one charged capias fee) =
$1,099.


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