
NO. 07-06-0441-CR
 
IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

FEBRUARY 9, 2007
 ______________________________

HENRY ARRIZOLA RAMIREZ, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE
_________________________________

FROM THE 242ND DISTRICT COURT OF HALE COUNTY;

NO. B16665-0602; HONORABLE ED SELF, JUDGE
_______________________________


Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
ON ABATEMENT AND REMAND

	Appellant, Henry Arrizola Ramirez, appeals his conviction for unauthorized absence
from a correctional facility.  Appellant's attorney has filed a brief in compliance with Anders
v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and certifies that there
are no non-frivolous issues to appeal.  Because of the court's concern regarding effective
representation of appellant on appeal, we grant attorney's motion to withdraw, abate the
appeal, and remand the case back to the trial court for appointment of new counsel.  

Background 
	Appellant was charged with unauthorized absence from a correctional facility,
assault, and forgery.   After a jury trial, appellant was found guilty of unauthorized absence
from a correctional facility and misdemeanor assault.  Appellant has appealed only the
conviction of unauthorized absence from a correctional facility.   His appellate counsel, has
filed a motion to withdraw along with an Anders brief.  Anders, 386 U.S. at 744-45. 
	In cases where an Anders brief has been filed, we face two interrelated tasks as we
consider counsel's motion to withdraw.  We must first satisfy ourselves that the attorney
has provided the client with a diligent and thorough search of the record for any arguable
claim that might support the appeal, and then we must determine whether counsel has
correctly concluded the appeal is frivolous.  See McCoy v. Court of Appeals of Wisconsin,
Dist. 1, 486 U.S. 429, 442, 108 S.Ct. 1895, 100 L.Ed.2d 440 (1988); High v. State, 573
S.W.2d 807, 813 (Tex.Crim.App. 1978).  
	In an Anders brief, counsel's discussion of the evidence adduced at trial must point
to any pertinent testimony found in the record, discuss any objections made during trial,
discuss the trial court's ruling on the objections, and why the trial court's rulings were
correct or why appellant was not harmed by the rulings of the court.  Johnson v. State, 885
S.W.2d 641, 646 (Tex.App.-Waco 1994, writ ref'd).  A cursory review of the evidence is
inadequate under Anders and its progeny, Stafford v. State, 813 S.W.2d 503, 510 n.3
(Tex.Crim.App. 1991), and is of no assistance to the court.  High, 573 S.W.2d at 812. 
Further, appellate counsel who has filed a brief stating that there are no arguable grounds
for appeal and who has filed a motion to withdraw must be allowed to withdraw.  See
Stafford, 813 S.W.2d at 511.  
	In this matter, appellant's brief was due to be filed no later than January 4, 2007. 
After failing to receive appellant's brief in a timely manner, this court notified counsel by
letter dated January 11 of the past due brief and requested a response by January 22.  
On January 23rd, this court received a motion to withdraw, an Anders brief, and a copy of
the attorney's letter informing appellant of the filing of the Anders brief. 
	"The constitutional requirement of substantial equality and fair process can only be
attained where counsel acts in the role of an active advocate in behalf of his client, as
opposed to that of amicus curiae . . . ."  Stafford v. State, 813 S.W.2d 503, 509
(Tex.Crim.App. 1991) (quoting Anders, 386 U.S. at 744).  In this matter, counsel has filed 
the brief late.  In his letter to appellant, counsel refers to Appellant's Amended Brief and
the Amended Motion to Withdraw.   In fact, counsel has filed an Appellant's Brief and a
Motion to Withdraw, but has amended neither.  In the Anders brief, counsel's analysis
consists of a single paragraph professing to have read and reviewed the entire record and
that counsel is unable to find any non-frivolous issues.  This analysis is similar to counsel's
first attempt at an Anders brief in Stafford which was determined to be unacceptable.  See
Stafford, 813 S.W.2d at 510.  Appellate counsel did not make specific references to the
record, either supporting or challenging the conviction.  See Johnson v. State, 885 S.W.2d
641, 646-47 (Tex.App.-Waco 1994, pet. ref'd). Furthermore, counsel references a
community supervision revocation issue without explaining how a community supervision
revocation issue arises from a jury trial of three original offenses.  This court is not satisfied
that appellant has received an active advocate.  
	We will not require counsel to refile a properly written Anders brief.  Instead, we
grant counsel's motion to withdraw, abate the appeal, and remand the cause to the trial
court.  Upon remand, the trial court should conduct a hearing within 30 days to determine
whether (1) appellant wishes to continue his appeal; (2) appellant remains indigent; and
(3) if indigent, appoint new counsel to represent appellant on appeal.  The trial court shall
direct the newly appointed counsel, if any, to file appellant's brief within 30 days after his
or her appointment, and shall furnish the name, address and State Bar number of
appointed counsel to the Clerk of this Court immediately after the appointment is made.
	Furthermore, the trial court shall also cause to be developed 1) a supplemental
clerk's record containing appointment of counsel and any additional orders arising from
said hearing  and 2) a reporter's record transcribing the evidence and arguments presented
at the aforementioned hearing.  Additionally, the trial court shall cause the supplemental
records to be filed with the clerk of this court on or before March 12, 2007.
	It is so ordered.

						Per Curiam




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NO. 07-10-0091-CV
NO. 07-10-0100-CV
NO. 07-10-0101-CV
 
IN THE COURT OF APPEALS
 
FOR THE SEVENTH DISTRICT OF TEXAS
 
AT AMARILLO
 
PANEL A
 
JANUARY 25, 2011
 
______________________________
 
 
TIMOTHY RAY WILLIAMS, APPELLANT
 
V.
 
THE STATE OF TEXAS, APPELLEE
                                      
_________________________________
 
FROM THE 181ST DISTRICT COURT OF RANDALL
COUNTY;
 
NOS. 18,246-B, 11,592-B, and 18,325-B; HONORABLE JOHN
B. BOARD, JUDGE
 
_______________________________
 
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
OPINION
            On February 25, 2010, in cause numbers 11,592-B (07-10-0100-CV), 18,246-B
(07-10-0091-CV), and 18,325-B (07-10-0101-CV),[1]
the trial court signed and entered documents entitled Order to Withdraw Inmate Funds (Pursuant to TX. GOVT.
Code, Sec. 501.014(e)).[2]    By the withdrawal notifications entered in
each cause, the trial court directed the Texas
Department of Criminal Justice Institutional Division to withhold the amounts
of $671.50 (Cause No. 11,592-B), $13,791.50 (Cause No. 18,246-B), and $1,363.43
(Cause No. 18,325-B) from Appellant's inmate account.[3]  While each withdrawal notification contained
the statement that "court costs, fines, and fees have been incurred as
represented in the certified Bill of Costs/Judgment attached hereto," none
contained an attachment of any kind. 
Furthermore, while the judgment entered in each case provides that the
"State of Texas do have and recover of the said [Appellant] all costs in
this proceeding incurred . . . ," the summary portion of each judgment
leaves costs blank.  Appellant filed pro
se notices of appeal on March 19, 2010, challenging each withdrawal
notification.  
Procedural Background
            By
opinion dated April 22, 2010, this Court concluded that no final, appealable
orders had been entered and found Appellant's notices of appeal to be
premature.  See Williams v. State, 322 S.W.3d 301,
304 (Tex.App.--Amarillo 2010, no pet.).  The appeals were abated for 180 days to allow Appellant an opportunity to challenge
the withdrawals from his inmate account in the trial court and obtain
appealable orders.  Id.  Shorty after releasing
our opinion, Appellant filed a challenge to the withdrawal notification in each
cause.
Trial Court Cause No. 11,592-B
Appellate Court Cause No. 07-10-0100-CV
 
            The Bill of
Costs reflects that Appellant owes $671.50 for costs which includes a $500 fine.  The withdrawal notification likewise reflects
that Appellant owes $671.50 for court costs, fines, and fees.  No costs, however, were assessed for
court-appointed attorney's fees. 
Appellant filed a Motion to
Rescind Order to Withdraw Inmate Funds/For Judgment Nunc
Pro Tunc.   Appellant asserts his case stemmed from a plea
bargain and contests the $500 fine as not being part of the plea bargain.  Following a telephone hearing, the trial court
denied Appellant's challenge to the $671.50 owed per the Bill of Costs.


 
Trial Court Cause No. 18,246-B
Appellate Court
Cause No. 07-10-0091-CV
            The
Bill of Costs reflects Appellant owes $13,791.50, of which $3,500.00 is for
attorney's fees.  The withdrawal
notification likewise reflects that Appellant owes $13,791.50 for court costs,
fines, and fees.  Appellant filed a Motion to Modify and Rescind Order to
Withdraw Inmate Funds.  Asserting due
process violations, he maintains that except for the $10,000 fine assessed
during his sentencing, no other costs were assessed and because no
"fact-specific determination" was made by the trial court that he had
the financial resources to pay, he moved the court to delete $3,500 in
attorney's fees and $291.50 in other fees. 
Following a telephone hearing, the trial court found that Appellant had
no income or any other resources to pay court-appointed attorney's fees.  Based on that finding, the trial court
granted Appellant's motion as it pertained to repayment of court-appointed
attorney's fees in the amount of $3,500, but denied that portion of the motion
as it pertained to "any other amounts contained in the 'Bill of
Costs.'" 
Trial Court Cause No. 18,325-B
Appellate Court Cause No. 07-10-0101-CV
 
 
            The
Bill of Costs reflects that Appellant owes $1,363.43 of which $400 is for
attorney's fees. The withdrawal notification likewise reflects that Appellant
owes $1,363.43 for court costs, fines, and fees.  Appellant filed a Motion to Rescind Order to Withdraw Inmate Funds.  Relying on the Fourteenth Amendment to the
United States Constitution and Article I, Section 19 of the Texas Constitution,
he alleges due process violations in the assessment of costs because he was
unaware, at the time he entered into his plea bargain, of the existence of
those costs.  He also asserts there is no
factual basis illustrating that he is able to pay the costs.  Following a telephone hearing, the trial court
found that Appellant had no income or any other resources to pay
court-appointed attorney's fees.  Based
on that finding, the trial court granted Appellant's motion as it pertained to
repayment of court-appointed attorney's fees in the amount of $400, but denied
that portion of the motion as it pertained to "any other amounts contained
in the 'Bill of Costs.'" 
Appealable Order
In Harrell v. State, 286 S.W.3d 315 (Tex. 2008), the Texas Supreme
Court held that a withdrawal notification directing prison officials to
withdraw money from an inmate account pursuant to section 501.014(e) is a civil
matter[4]
akin to a garnishment action or an action to obtain a turnover order.  Id. at 317-19. 
Discussing the due process accorded to the appellant, the Court balanced
the three factors discussed in Mathews v.
Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47
L.Ed.2d 18 (1976), and found that
Harrell had "already received some measure of due process."  Harrell, 286 S.W.3d at 320.  In determining whether Harrell was accorded
constitutional due process, the Court concluded that because Harrell had
received notice of the withdrawal (a copy of the withdrawal notification) and
an opportunity to contest the dollar amount and statutory basis of the withdrawal
(a motion to rescind or modify the withdrawal notification),[5] he received all that due process
required.  Id. at 321.  The Court added that neither notice nor an
opportunity to be heard need occur before the issuance of a withdrawal
notification.  Id.  This Court has
interpreted Harrell as saying that
due process requires that an inmate have an opportunity to contest the dollar
amount and statutory basis of the withdrawal by way of a motion to modify,
correct, or rescind the withdrawal notification.  Snelson v. State,
No. 07-10-00259-CV, 2010 Tex. App. LEXIS 9016, at *5-6 (Tex.App.--Amarillo Nov.
10, 2010, no pet. h.); Bryant v. State,
No. 07-10-00358-CV, 2010 Tex. App. LEXIS 8059, at *4-5 (Tex.App.--Amarillo Oct.
5, 2010, no pet.); Williams v. State, 322 S.W.3d 301 (Tex.App.--Amarillo
2010, no pet.).  The trial court's
disposition of such a motion creates an appealable order.  See
Ramirez v. State, 318 S.W.3d 906, 908
(Tex.App.--Waco 2010, no pet.) (holding that
"only when [the withdrawal notification is] properly challenged and denied
relief is there an order that is final from which the inmate can appeal").

Standard of Review
            We review a trial
court's decision whether to deny a motion contesting a withdrawal notification
under an abuse of discretion standard.  See Canty v. State, No. 12-08-00257-CV, 2009 Tex. App.
LEXIS 2715, at *3-4, (Tex.App.--Tyler April 15, 2009, no pet.) (mem. op., not designated for publication) (holding that a trial court's decision to hold a civil
expunction proceeding is subject to review under an abuse of discretion
standard).  A trial court abuses its
discretion when it acts "without reference to any guiding rules and
principles."  Quixtar Inc. v. Signature Mgmt. Team, LLC, 315 S.W.3d 28, 31
(Tex. 2010) (quoting Downer v. Aquamarine
Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985)); Howell v. State, 175 S.W.3d 786, 792 (Tex.Crim.App. 2005); Montgomery v. State, 810 S.W.2d 372, 380 (Tex.Crim.App. 1990).  Furthermore, a trial court abuses its
discretion if "it reaches a decision so arbitrary and unreasonable as to
amount to a clear and prejudicial error of law."  Johnson
v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985).
Court Costs
            A certified bill of
costs imposes an obligation upon a criminal defendant to pay court costs,
irrespective of whether or not that bill is incorporated by reference into the
written judgment.  See generally Tex. Code Crim. Proc. Ann. arts. 103.001 and 103.003 (West 2006).  See also
Tex. Gov't Code Ann. §§ 102.001 - 103.033. (West 2006 and Supp. 2010). 
Where court costs are imposed as a matter of legislative directive, they
do not need to be included in the oral pronouncement of sentence or the written
judgment in order to be imposed upon a convicted defendant.  See
Weir v. State, 278 S.W.3d 364,
367 (Tex.Crim.App. 2009) (holding that because legislatively mandated court
costs are not punitive, they did not have to be included in the oral
pronouncement of sentence as a precondition to their inclusion in the trial
court's written judgment); Smith v. State, Nos. 07-09-00009-CR &
07-10-00010-CR, 2010 Tex. App. LEXIS 3846, at *21 (Tex.App.--Amarillo May 20,
2010, pet. ref'd) (mem.
op., not designated for publication) (holding that a precise dollar amount of
court costs did not have to be specified in the oral pronouncement of sentence
or the written judgment as a precondition to their inclusion in the clerk's
bill of costs).  


 
Court-Appointed
Attorney's Fees
            Pursuant to article
26.05(g) of the Texas Code of Criminal Procedure, if a trial court determines
that a defendant has financial resources that enable him to repay, in whole or
in part, the costs of legal services provided by a court-appointed attorney, the
court has authority to order a convicted defendant to pay "as court costs
the amount that it finds the defendant is able to pay."  See Tex. Code Crim. Proc. Ann. art. 26.05(g)
(West Supp. 2010).  Without record
evidence demonstrating a defendant's financial resources to offset the costs of
legal services, a trial court errs if it orders reimbursement of
court-appointed attorney's fees.  Mayer v. State, 309 S.W.3d 552
(Tex.Crim.App. 2010).  Unless a material
change in a criminal defendant's financial resources is established by
competent legal evidence, once that defendant has been found to be indigent, he
is presumed to remain indigent for the remainder of the proceedings.  Tex. Code Crim. Proc. Ann. art. 26.04(p) (West
Supp. 2010); Mayer, 309 S.W.3d at 557.
Analysis
Regarding the $500 fine assessed in cause number 11,592-B,
Appellant argued during the telephone hearing that no fine was discussed as
part of his plea bargain and believed it was a clerical error related to a $50
restitution fee.  He requested a judgment
nunc pro tunc to correct
the alleged error.  Although Appellant
did not have a copy of his signed plea papers, the trial court's file contained
plea papers signed by Appellant and his attorney which clearly indicate a $500
fine as a part of the negotiated plea bargain. Because we do not have a
transcript of the original pronouncement of sentence in cause number 11,592-B,
we make no ruling as to whether the fine was pronounced in Appellant's presence.  Tex. Code Crim. Proc. Ann.
art. 42.02, 42.03(1)(a) (West 2006 & Supp.
2010).  However, we note that a
recitation in the judgment, such as the one here assessing a fine of $500,
creates a binding presumption of regularity, absent direct proof to the
contrary.  See Johnson v. State, 72 S.W.3d 346, 349
(Tex.Crim.App. 2002).  Therefore, we
conclude that the fine was properly collectable.
As set out above, in cause numbers 18,246-B and 18,325-B, the
respective Bills of Costs include $3,500 and $400 in court-appointed attorney's
fees.  At the time of his original
convictions, Appellant was determined to be indigent and qualified for
court-appointed counsel.  During the
telephone hearing on Appellant's challenges to the Bills of Costs, the trial
court inquired into Appellant's financial status and concluded he remained
indigent.  The court deleted the costs
assessed for attorney's fees but denied relief as to all other costs contained
in the Bills of Costs.  
Based on the record before us, the trial court's file
confirmed that Appellant was assessed a $500 fine in trial court cause number
11,592-B and thus, that amount is lawfully contained in the Bill of Costs.  The trial court correctly deleted $3,500 in
attorney's fees from the Bill of Costs in trial court cause
number 18,246-B and $400 in attorney's fees from the Bill of Costs in trial
court cause number 18,325-B.  See Mayer v. State, 309
S.W.3d at 557.  Other costs
complained of by Appellant are legislatively mandated[6] and
do not need to be included in the oral pronouncement of sentence or the written
judgment in order to be imposed upon a convicted defendant.  Weir,
278 S.W.3d at 267. 
Such fees are properly collectable by means of a withdrawal notification
regardless of a defendant's ability to pay. 
Consequently, the trial court's orders entered in response to
Appellant's challenges to the withdrawal notifications are affirmed.
 
                                                                                    Patrick
A. Pirtle
                                                                                          Justice




[1]In
cause number 11,592-B, Appellant was convicted of burglary of a habitation and
sentenced to eight years confinement and a $500 fine. Tex.
Penal Code Ann. § 30.02 (West 2003).  
Appellant did not appeal this conviction.  In cause number 18,246-B, Appellant was
convicted of possession of a controlled substance, a second degree felony, and
sentenced to twenty years confinement and a $10,000 fine. Tex.
Health & Safety Code Ann. § 481.115(d) (West 2010).  Appellant's conviction was affirmed.  Williams v. State, No. 07-07-0314-CR 2008 Tex.App. LEXIS
5268 (Tex.App.--Amarillo July 16, 2008, pet. ref'd) (mem. op., not designated for publication).  In cause number
18,325-B, Appellant was convicted of possession of a controlled substance, a
second degree felony, enhanced, and sentenced to ten years confinement.  Tex. Health & Safety
Code Ann. § 481.115(d) (West 2010). 
Appellant did not appeal this conviction.
 


[2]This
document is not an "order" in the traditional sense of a court order,
judgment, or decree issued after notice and hearing in either a civil or
criminal proceeding.  The controlling
statute, Tex. Gov't Code Ann. §
501.014(e) (West Supp. 2010), describes the process as a "notification by
a court" directing prison officials to withdraw sums from an inmate's
account, in accordance with a schedule of priorities set by the statute, for
the payment of "any amount the inmate is ordered to pay by order of the
court."  See id. at § 501.014(e)(1)-(6). 
See also Harrell v. State, 286
S.W.3d 315, 316 n.1 (Tex. 2009).  This document is more akin to a judgment
nisi.  A judgment nisi, commonly used in
bond forfeiture proceedings, is a provisional judgment entered when an accused
fails to appear for trial.  A judgment
nisi triggers the issuance of a capias
and it serves as notice of the institution of a bond forfeiture
proceeding.  It is not final or absolute,
but may become final.  See Safety Nat'l Cas. Corp. v. State, 273 S.W.3d 157, 163 (Tex.Crim.App. 2008).  Nisi means "unless," so a judgment
nisi is valid unless a party takes action causing it to be withdrawn.  Id.  Similarly, a withdrawal notification
issued pursuant to §
501.014(e), triggers a trust fund withdrawal, serves as notice of the
collection proceeding, and continues to operate unless the inmate takes action
causing the notification to be withdrawn. 
Therefore, rather than refer to that document as an order, we prefer to
use the statutory term "withdrawal notification" to avoid confusion
with the underlying court order or judgment ordering the payment of a sum
falling within at least one of the six priority categories listed in § 501.014(e).
 


[3]Formerly
referred to as inmate trust accounts, the term "trust" has been
removed from statutory references.  See Act of May 11, 1989, 71st
Leg., R.S., ch. 212, § 2.01, 1989 Tex. Gen. Laws 918,
958, amended by Act of May 17, 1999,
76th Leg., R.S., ch. 326, §1, 1999 Tex.
Gen. Laws 1235, 1236 (current version at Tex. Gov't Code Ann. § 501.014 (West Supp.
2010)).  Accordingly, they are simply
inmate accounts.


[4]See Johnson v. Tenth Judicial District Court
of Appeals at Waco, 280 S.W.3d 866, 869 (Tex.Crim.App. 2008) (holding that
orders directing withdrawal of funds from inmate trust accounts are not a
criminal matter).
 


[5]The
trial court denied Harrell's Motion to
Rescind.  See Harrell v. State, Nos. 07-06-0469-CR, 07-06-0470-CR, 2007 Tex.
App. LEXIS 6416, at *2 (Tex.App.--Amarillo Aug. 13, 2007), rev'd, 286 S.W.3d 315 (Tex. 2008).


[6]See, e.g., Tex. Alco.
Bev. Code Ann. §
106.12 (West 2007); Tex. Bus. & Com. Code Ann. § 3.506 (West Supp. 2010);
Tex. Bus. Orgs. Code Ann. § 10.365 (West Supp.
2010); Tex. Code Crim. Proc. Ann. arts. 17.42, 17.43, 17.441, 37.073, 42.037,
42.12, 42.22, 45.0216, 45.026, 45.041, 45.051, 45.055, 45.0511(c-1),
45.0511(f)(1 - 2), 45.052, 45.203, 62.353, 102.001 - 102.072, 103.0031 (West
2006 & Supp. 2010); Tex. Educ. Code Ann. §
37.011 (West Supp. 2010); Tex. Fam. Code Ann. §§ 8.262, 8.267, 8.302, 8.303, 45.106, 53.03,
54.032, 54.0411, 54.0461, 54.0462, 54.061, 81.003, 108.006, 110.002, 110.004,
110.005, 158.319, 158.403, 158.503, 160.762, 232.013 (West 2006, 2008 &
Supp. 2010); Tex. Gov't Code Ann. §§
25.0593, 25.0594, 25.1572, 25.2223, 30.00014, 30.00147, 41.258, 51.601, 51.702
- 51,703, 54.313, 54.403, 54.745, 54.663, 54.913, 54.983, 54.954, 54.1116, 76.015,
82.0361, 102.001 - 103.033, 411.081 (West 2005 & Supp. 2010); Tex. Health
& Safety Code Ann. §§
161.255, 469.004, 821.023 (West 2010); Tex. Hum. Res. Code
Ann. § 152.0522
(West 2001); Tex. Local Gov't Code Ann. §§
118.131, 132.002, 132.003, 133.101 - 133.154, 191.007 (West 2008 & Supp.
2010); Tex. Parks and Wild. Code Ann. §§
12.110, 12.308 (West Supp. 2010); Tex. Transp. Code Ann. §§ 284.2031, 521.026,
521.048, 542.403, 542.407, 545.412, 548.605, 601.263, 706.006 (West 1999, 2007
& Supp. 2010) (not intended as an exhaustive list).


