                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-13-00029-CR



               MARK DOLPH, Appellant

                            V.

           THE STATE OF TEXAS, Appellee



          On Appeal from the 5th District Court
                 Bowie County, Texas
             Trial Court No. 11F-0764-005




       Before Morriss, C.J., Carter and Moseley, JJ.
               Opinion by Justice Carter
                                                OPINION
           Mark Dolph, who chose to represent himself for a portion of his trial during the

guilt/innocence phase, was convicted by a jury for unlawful possession of a firearm by a felon,

sentenced to fifty-eight years’ imprisonment, and ordered to pay a $10,000.00 fine. 1 On appeal,

Dolph argues that the trial court erred in finding his waiver of counsel and election to represent

himself to be knowing, voluntary, and intelligent because the court “failed to admonish him

regarding the nature of the charge, the statutory offense included within it, the range of allowable

punishment, the possible defenses to the charges and any mitigating circumstances.” After

reviewing the trial, we find that Dolph was sufficiently admonished in accordance with Faretta

v. California, 422 U.S. 806, 807 (1975). We find that Dolph waived his right to counsel with full

knowledge of the proceedings. Further, he was assisted by counsel during the proceedings at all

times. We reform the judgment to delete the assessment of a fine. Otherwise, we affirm the trial

court’s judgment.

I.         Dolph’s Invocation of the Right of Self-Representation Was Made Competently,
           Knowingly and Intelligently, and Voluntarily

           “The Sixth and Fourteenth Amendments of our Constitution guarantee that a person

brought to trial in any state or federal court must be afforded the right to the assistance of counsel

before he can be validly convicted and punished by imprisonment.”                 Id. at 807.   “Those

amendments also guarantee that any such defendant may dispense with counsel and make his

own defense.” Collier v. State, 959 S.W.2d 621, 625 (Tex. Crim. App. 1997) (citing Faretta,


1
    See TEX. PENAL CODE ANN. § 46.04 (West 2011), § 12.42(d) (West Supp. 2013).


                                                        2
422 U.S. at 818–20); see Adams v. United States ex rel. McCann, 317 U.S. 269, 279 (1942)

(“[T]he Constitution does not force a lawyer upon a defendant.”).

            “When an accused manages his own defense, he relinquishes . . . many of the traditional

benefits associated with the right to counsel.” Faretta, 422 U.S. at 835. These rights must be

waived “(1) competently,[2] (2) knowingly and intelligently, and (3) voluntarily.” Collier, 959

S.W.2d at 625 (citing Godinez v. Moran, 509 U.S. 389, 400–01 (1993); Faretta, 422 U.S. at

834–36). “Although a defendant need not himself have the skill and experience of a lawyer in

order competently and intelligently to choose self-representation, he should be made aware of the

dangers and disadvantages of self-representation, so that the record will establish that ‘he knows

what he is doing and his choice is made with eyes open.’” Faretta, 422 U.S. at 835 (quoting

Adams, 317 U.S. at 279); see Collier, 959 S.W.2d at 625. “The decision is made ‘voluntarily’ if

it is uncoerced.” 3 Collier, 959 S.W.2d at 625 (citing Godinez, 509 U.S. at 401).

           A trial court need not follow a “formulaic questioning” or particular “script” to assure

itself that an accused who has asserted his or her right to self-representation does so with “eyes

open.” Burgess v. State, 816 S.W.2d 424, 428 (Tex. Crim. App. 1991). Yet, from Faretta, we

gather that if (1) a defendant clearly and unequivocally declares to a trial judge that he wants to

represent himself and does not want counsel, (2) the record affirmatively shows that a defendant

is literate, competent, and understanding and that he is voluntarily exercising his informed free

will, and (3) the trial judge warns the defendant that he thinks it is “a mistake not to accept the
2
    Dolph was found to be competent. There is no argument contesting this finding.
3
 We must “indulge in every reasonable presumption against waiver” of counsel. Brewer v. Williams, 430 U.S. 387,
404 (1977); Jordan v. State, 571 S.W.2d 883, 884 (Tex. Crim. App. 1978).

                                                           3
assistance of counsel” and that the defendant will “be required to follow all the ‘ground rules’ of

trial procedure,” the right of self-representation cannot be denied. Faretta, 422 U.S. at 835–36.

        Here, the record establishes that Dolph insisted on representing himself after the trial

court warned him of the dangers and disadvantages of such a choice.

        Although Dolph had the assistance of the appointed public defender, Derric McFarland,

Dolph informed the court of his desire to represent himself on the day of jury selection. 4 Dolph

explained, “[T]he reason I ask that is because he sometimes -- or he hasn’t filed no motions or,

you know, if there’s something I want him to do and he tells me he don’t want to do it during

trial, I figured like that wouldn’t be a fair trial.” After the court asked Dolph why he believed

self-representation would benefit him, Dolph explained the he would make arguments that his

counsel would not make—namely, that his bond should be reduced and that the trial court lacked

subject matter jurisdiction—and that he would “bring up objections that [McFarland] wouldn’t.”

        The court determined that Dolph could read and write, had a tenth-grade education, and

obtained a GED and found that there were no issues relating to competency or mental disease.

The court admonished Dolph, “I’m going to have to hold you to the same standard that I would

attorneys, in other words, I’m going to have to expect you to follow the rules of evidence and the

rules of procedure.” The court also reminded him again that he had the right to be represented

by counsel. The trial court discussed at length the expectation that Dolph follow the court’s




4
 The trial court stated, “The Court has appointed you an attorney through the public defender’s office and you are
electing at this point to forego that representation.” The court then obtained Dolph’s understanding that he was
“giving up [his] right to counsel, by doing this, by going forward and representing” himself.

                                                        4
evidentiary rulings 5 and the procedures involved in the criminal proceeding and warned Dolph

that he would not enjoy hybrid representation. 6

           Despite the court’s explanations and warnings against hybrid representation, Dolph still

desired to represent himself. The court found:

           Well then -- what -- I’ve determined that you’ve got sufficient education, I’ve
           determined that you’re competent and that you’re literate. I have gone over some
           of the issues that you’re going to have to -- that, some of the rights that you have,
           some of the consequences of representing yourself. I will go through a few more
           of them. I’ve kind of explained to you the procedure with respect to the making
           of objections and the introduction of evidence after the court has made a ruling on
           the objections.

           All right, so you’re electing to represent yourself. I’ve gone through the factors
           that the Supreme Court identified in Faretta vs. California, 422 U.S. 806. If you

5
    The court explained,

                     THE COURT: Okay. And I’m going to have to expect you to follow my rulings the way
           that I would expect an attorney to follow the rulings. You understand that? . . . .So that means that
           if I make a ruling that if, that certain evidence is not admissible, then we’ll give you an
           opportunity to make a record of what the evidence would be outside the presence of the jury, but if
           I make a ruling that certain evidence is not admissible that’s a legal ruling and you can’t mention it
           in front of the jury after I make that ruling, you understand that?

                    THE DEFENDANT: Yes, sir, Your Honor.

                     THE COURT: Okay. Because, see, the way it works is that I’m the judge of the law and
           the jury is the judge of the facts. And as a judge of the law, I decide what facts they get to hear,
           okay? Based on the law. The law allows certain things to be introduced and doesn’t allow certain
           things to be introduced, and the decision over whether something gets before the jury or not is my
           decision, it’s a legal question. So if an attorney stands up and objects to the introduction of certain
           evidence, then I have to make a ruling on, under the rules of evidence, whether or not to let the
           evidence in. If I sustain the objection, then I’m saying it doesn’t come in and the jury doesn’t get
           to hear it, and after I make that ruling you have to follow that ruling and not mention it. So do you
           understand that?

                    THE DEFENDANT: Yes, sir, Your Honor.
6
 The court warned, “[Y]ou don’t have a right to what they call a hybrid representation. In other words, you can’t --
you can’t have a lawyer and then at the same time jump up and make motions and make objections and introduce
evidence contrary to your lawyer’s. Either you represent yourself or you have a lawyer and you let the lawyer
represent you.”
                                                             5
           persist in representing yourself, that’s your right. We will respect that. I’m going
           to designate . . . standby counsel to assist you on any legal issues, legal questions
           that you may have. But you’ve undertaken to represent yourself in this matter,
           and so -- you have a right to do that, and so that’s what we’re going to do.

             Dolph’s brief admits that the “trial judge’s inquiry into Appellant’s education, literacy

and competency was proper for a Faretta hearing, as was the judge’s summary of the trial

process and warnings that Appellant would be held to the same standards as appointed counsel.”

We find that the record contains proper admonishments concerning pro se representation and all

necessary inquiries to enable the trial court to assess Dolph’s knowing exercise of the right to

defend himself. See Goffney v. State, 843 S.W.2d 583, 585 (Tex. Crim. App. 1992). Dolph’s

persistence in asserting his right of self-representation despite the court’s admonishments was all

that was required in order for the court to determine that the assertion was made purposefully.

See Burgess, 816 S.W.2d at 426, 429; 7 Blankenship v. State, 673 S.W.2d 578, 583 (Tex. Crim.

App. 1984) (quoting United States v. Thompkins, 623 F.2d 824, 825 (2d. Cir. 1980)).

           Dolph’s only complaint, then, is that there is “insufficient evidence that Appellant

knowingly, intelligently, and voluntarily waived his right to counsel.” He asserts that “the


7
    The court in Burgess wrote:

           [The Defendant] unequivocally asserted his right to self-representation. Since Renfro [v. State,
           586 S.W.2d 496 (Tex. Crim. App. 1979),] this Court has observed that a trial court need follow no
           “formulaic questioning” or particular “script” to assure itself that an accused who has asserted his
           right to self-representation does so with eyes open. Blankenship v. State, 673 S.W.2d 578, [] 583
           (Tex.[ Crim. ]App. 1984). See also Martin v. State, 630 S.W.2d 952,[] 954 (Tex.[ Crim. ]App.
           1982); Johnson v. State, 760 S.W.2d 277,[] 278 (Tex.[ Crim. ]App. 1988) (Plurality opinion). It is
           required only that the record “contain proper admonishments concerning pro se representation and
           any necessary inquiries of the defendant so that the trial court may make ‘an assessment of his
           knowing exercise of the right to defend himself.’ Faretta, supra, 422 U.S. at 836, 95 S.Ct. at
           2541.” Blankenship v. State, supra, at 583.

816 S.W.2d at 428.
                                                            6
admonishments that were crucial to Appellant’s case were those related to the range of

punishment, possible defenses to the statutory offense, and any mitigating circumstances.”

II.    Waiver of Counsel—Hybrid Representation

       A.      Summary of the Proceedings

       During the proceedings, Dolph utilized his standby counsel. The record reflects that

McFarland “briefly whisper[ed] to the defendant” during voir dire. McFarland expended effort

to secure a witness allegedly favorable to Dolph, issued a subpoena for Dolph, and otherwise

advised Dolph when asked for assistance during trial. Most importantly, Dolph stepped aside in

the middle of the guilt/innocence phase, and McFarland resumed his place as active counsel for

the remainder of the proceeding.

       These efforts failed Dolph since the evidence of his guilt was strong. Officer Kelly Dial

of the Nash Police Department testified that he witnessed a vehicle pull into “the parking lot of

the Country Store” at night to “make a real quick transaction without going inside the store, kind

of a hand to hand with another occupant outside—or another person outside of the store, and

then they drove away.” Dial suspected drug activity. He noticed that the vehicle had an expired

tag and made a traffic stop. Dolph “was the passenger in the rear of the vehicle.”

       Dial testified that the driver of the vehicle gave consent to search. According to Dial, the

driver “said that he thought there may be some crack cocaine in a towel in the back seat.” Dolph

was asked to exit the vehicle. Dial testified, “[Dolph] advised me that there was a gun in the

back seat. Or pistol, excuse me, . . . that he was holding . . . for a friend.” Dial recovered a




                                                7
“Jimenez Arms .380” semi-automatic pistol that was loaded with “seven rounds, including one in

the chamber.”

            After Dial testified, Dolph argued that the testimony was inadmissible because he

believed his Miranda rights were violated. See Miranda v. Arizona, 384 U.S. 436 (1966). The

trial court ruled that the objection was waived because the testimony was previously introduced

without objection. This prompted Dolph to ask that McFarland be allowed to represent him.

After further discussion and admonishments, the trial court allowed stand-by counsel to resume

the role of active trial counsel. McFarland conducted the remainder of the trial, which included

Officer Scott Eudy’s testimony that Dolph said he was holding the gun for a friend. 8 McFarland

also represented Dolph during the punishment phase, wherein Dolph pled true to the State’s

enhancement allegations.

            B.        Dolph’s Arguments

            “A judge must investigate as long and as thoroughly as the circumstances of the case

before him demand” prior to determining that the right to counsel has been waived. 9

8
    A video recording of the arrest was also played for the jury.
9
 “[C]ourts sometimes consider the right of self-representation in conjunction with the issue of waiver of counsel . . .
.” Cooks v. State, 169 S.W.3d 288, 293 (Tex. App.—Texarkana 2005, pet. ref’d). We have previously stated,

            [E]xercising the right of self-representation does not require the defendant to first knowingly and
            intelligently waive the right to the assistance of counsel. See Saunders v. State, 721 S.W.2d 359,
            362 (Tex. App.—Tyler 1985, pet. ref’d). The defendant’s demand for self-representation cannot
            be denied due to the record’s failure to reflect effective waiver of right to counsel. Id. The
            validity of the defendant’s assertion of the right to self-representation depends on whether the
            defendant was aware of the dangers and disadvantages of self-representation, rather than the
            traditional analysis for waiver of counsel. Johnson v. State, 760 S.W.2d 277, 278 (Tex. Crim.
            App. 1988) (plurality op.).

Id. The “defendant’s demand for self-representation cannot be denied due to the record’s failure to reflect effective
waiver of right to counsel.” Id.
                                                              8
Blankenship, 673 S.W.2d at 583 (quoting Von Moltke v. Gillies, 332 U.S. 708, 723 (1948)). “To

be valid such waiver must be made with an apprehension of the nature of the charges, the

statutory offenses included within them, the range of allowable punishments, thereunder,

possible defenses to the charges and circumstances in mitigation thereof, and all other facts

essential to a broad understanding of the whole matter.” Id. (quoting Von Moltke, 332 U.S. at

723).

         Dolph complains that “the admonishments that were crucial to [his] case were those

related to the range of punishment, possible defenses to the statutory offense, and any mitigating

circumstances.” 10 “To assess whether a waiver [of the right to counsel] is effective, courts

consider the totality of the circumstances. This means that courts must examine “the particular




10
  Dolph argues that this case is similar to that of Buster v. State, 144 S.W.3d 71, 74–75 (Tex. App.—Tyler 2004, no
pet.). In that case, the trial court allowed the defendant to represent himself—due to an “insurmountable” conflict of
interest with his attorney—after issuing admonishments which Dolph mistakenly argues were similar to the ones
given by the trial court in this case. Id. at 74–75. However, “the [trial] judge did not specifically admonish [Buster]
that he would not be granted any relief from the technicalities of the rules of evidence and procedure.” Id. at 77.

       During opening statement, Buster “admitted to committing the offense, but argued that his actions were
unintentional because of his diminished capacity or mental incapacity.” Id. at 75. The jury convicted Buster of
assault on a public servant. Id. at 76. The court in Buster noted that the “judge did not advise Appellant of the range
of allowable punishment or of possible defenses to the charges and mitigating circumstances.” Id. at 77. The court
wrote, “Even though the court of criminal appeals has refused to adopt a formula or script to determine a knowing
and intelligent waiver, we cannot conclude that an admonishment concerning unfamiliarity with procedural and
substantive laws and rights only and covering barely two pages of the statement of facts is sufficient.” Id. at 77. It
held that “his waiver of counsel was not made knowingly and intelligently and, thus, was constitutionally
ineffective.” Id. at 78. Buster is distinguishable from this case because the trial court there did not comply with
Faretta, Buster was not aware of the range of punishment, there were mitigating circumstances and defenses
applicable to Buster’s case on which he was not admonished, Buster was not appointed standby counsel, and Buster
represented himself during the punishment phase. Id. at 76.

                                                          9
facts and circumstances surrounding that case, including the background, experience, and

conduct of the accused.” Williams v. State, 252 S.W.3d 353, 356 (Tex. Crim. App. 2008). 11

At a pretrial hearing, the trial court instructed Dolph that he was “charged by indictment . . . with

the unlawful possession of a firearm by a felon, with two prior felony convictions.” At that time,

Dolph, represented by counsel, expressly waived the reading of the entire indictment. The State

explained the range of punishment Dolph would face at trial:

            For the record, Your Honor, the State made an offer to drop Mr. Dolph’s
            enhancement paragraphs. He is double enhanced as an habitual offender, making
            his punishment range a minimum of 25 years to 99 or life. The State offered to
            drop those two enhancement paragraphs and plead Mr. Dolph to eight years. That
            offer expired last Friday. The State now makes an offer to plead him to ten years
            today. Otherwise, his minimum will be 25 at trial.

McFarland asked Dolph if he understood the statement, and the court asked if he understood the

offer. Dolph responded affirmatively. 12 Thus, the record shows that Dolph was aware of the

charges against him as well as the range of punishment. 13 Although Dolph complains that the

trial court failed to admonish him about possible defenses to the charges and circumstances in

mitigation thereof, there is no argument or evidence that any viable defense or mitigating

evidence existed or that the trial court had any information regarding possible defenses or

mitigating circumstances.

11
 The Texas Code of Criminal Procedure contains a form to be signed by a defendant which expressly waives the
defendant’s right to counsel. TEX. CODE CRIM. PROC. ANN. art. 1.051(g) (West Supp. 2013). No such written
waiver of counsel is contained in this record.
12
     Dolph also rejected a fifteen-year negotiated plea agreement.
13
  Further, the failure of the trial court to advise a defendant of the possible punishment range, by itself, does not
require reversal. Halliburton v. State, 928 S.W.2d 650, 652–53 (Tex. App.—San Antonio 1996, pet. ref’d); see
Smith v. State, No. 05-03-01282-CR, 2004 WL 1089206, at *8 (Tex. App.—Dallas May 17, 2004, no pet.) (not
designated for publication) (holding same).
                                                            10
       Waiver of counsel is valid only if the defendant has a broad understanding of the entire

matter. Dolph had full knowledge of the entire proceeding and waived counsel after extensive

warnings informed him of the possible consequences of his choice.

       C.      Dolph Received Assistance of Counsel at all Times

       The United State Supreme Court wrote in Faretta:

       [The Sixth Amendment] speaks of the ‘assistance’ of counsel, and an assistant,
       however expert, is still an assistant. The language and spirit of the Sixth
       Amendment contemplate that counsel, like the other defense tools guaranteed by
       the Amendment, shall be an aid to a willing defendant—not an organ of the State
       interposed between an unwilling defendant and his right to defend himself
       personally. To thrust counsel upon the accused, against his considered wish, thus
       violates the logic of the Amendment. In such a case, counsel is not an assistant,
       but a master; and the right to make a defense is stripped of the personal character
       upon which the Amendment insists.

Faretta, 422 U.S. at 819.

       “The term ‘standby counsel’ usually describes situations when, in response to a

defendant’s request for self-representation, the trial court instead allows the defendant’s attorney

to remain as counsel and be available to advise the defendant and participate in the case, or not,

as requested by the defendant.” Walker v. State, 962 S.W.2d 124, 126 (Tex. App.—Houston [1st

Dist.] 1997, pet. ref’d) (citing Faretta, 422 U.S. at 834). “In such a case, if the defendant

thereafter invokes the participation of standby counsel, the representation becomes hybrid, which

has been described as ‘partially pro se and partially by counsel.’” Id. (citing Landers v. State,

550 S.W.2d 272, 280 (Tex. Crim. App. 1977)). “The Faretta admonishments for pro se

defendants are not required for defendants engaged in hybrid representation.” Id. (citing Maddox




                                                11
v. State, 613 S.W.2d 275, 286 (Tex. Crim. App. 1980) (op. on reh’g)); Robertson v. State, 934

S.W.2d 861, 865–66 (Tex. App.—Houston [14th Dist.] 1996, no pet.).

       We find that Dolph engaged in hybrid representation (partially pro se and partially by

counsel) in this case. McFarland represented Dolph during all pretrial proceedings, a portion of

the guilt/innocence phase, and all of the punishment phase. During the time Dolph conducted

the voir dire, McFarland was present, as stand-by counsel, to answer Dolph’s questions. The

record shows McFarland continued to participate in the trial—he conferred with Dolph, and the

trial court recessed to allow “[t]he attorney[s] . . . to exercise their strikes,” affording Dolph

another opportunity to confer with McFarland. Dolph also conferred with McFarland during the

portions of the guilt/innocence phase which Dolph conducted. The record shows that McFarland

explained to the trial court that the State was about to stipulate to certain redactions to the

videorecording of Dolph’s arrest prior to Dolph’s assertion of self-representation. Because the

stipulation had not yet been entered, McFarland urged the trial court to secure it. McFarland also

informed the court that there might be a witness favorable to Dolph and issued a subpoena to

secure her presence.      After Dial’s testimony, the court allowed McFarland to conduct the

remainder of the trial.

       In cases where hybrid representation is allowed, “no question of waiver of counsel is

involved.” See Maddox, 613 S.W.2d at 286 (quoting Phillips v. State, 604 S.W.2d 904, 908

(Tex. Crim. App. 1979)). Thus, we reject Dolph’s complaint that his waiver of the right to




                                               12
counsel was involuntary because the court failed to give the requested admonishments. 14 See id.

(admonishment required only where defendants represent themselves without assistance of

counsel); Phillips, 604 S.W.2d at 907–08 (Tex. Crim. App. 1979) (concluding there was no

waiver of counsel where counsel remained to assist defendant when necessary, “Appellant was

not prohibited from conferring with his attorney,” “counsel continued to make objections

throughout the trial,” and counsel “made the majority of the closing argument at the guilt or

innocence phase and all of the argument at the punishment phase”). 15 We overrule Dolph’s point

of error.

III.    Reformation of the Judgment

        The Texas Rules of Appellate Procedure give this Court authority to reform judgments

when necessary. TEX. R. APP. P. 43.2(b); French v. State, 830 S.W.2d 607, 609 (Tex. Crim.

App. 1992); Rhoten v. State, 299 S.W.3d 349, 356 (Tex. App.—Texarkana 2009, no pet.). “Our

authority to reform incorrect judgments is not dependent on the request of any party, nor does it

turn on a question of whether a party has or has not objected in trial court; we may act sua sponte

14
  After asserting his right to self-representation, a defendant may waive it by his subsequent conduct. Robinson v.
State, 387 S.W.3d 815, 820 (Tex. App.—Eastland 2012, no pet.) (citing Brown v. Wainwright, 665 F.2d 607, 611
(5th Cir. 1982); Chapman v. United States, 553 F.2d 886, 893 & n. 12 (5th Cir. 1977)). “The trial court may find a
waiver of the right where it reasonably appears that the defendant has abandoned his initial request to represent
himself or is vacillating on the issue.” Id. at 820–21.
15
  Several courts of appeal have found that no waiver of counsel is necessary whenever stand-by counsel is
appointed, regardless of the participation by counsel. Walker, 962 S.W.2d at 126–27; Robertson, 934 S.W.2d at
865–66; Stell v. State, No. 05-12-00578-CR, 2013 WL 3947179 at *3 (Tex. App.—Dallas Jul. 29, 2013, no pet.)
(not designated for publication); Newkirk v. State, No. 05–12–00202–CR, 2013 WL 222278, at *2 (Tex. App.—
Dallas Jan. 22, 2013, no pet.) (not designated for publication) (holding admonishments are not required); Lopez v.
State, No. 14-07-01019-CR, 2009 WL 838198, at *2 (Tex. App.—Houston [14th Dist.] 2009, pet. ref’d); Jordan v.
State, No. 08-05-22086-CR, 2007 WL 1513996, at *5 (Tex. App.—El Paso May 24, 2007, no pet.) (mem. op., not
designated for publication); but see Grant v. State, 255 S.W.3d 642, 647–48 (Tex. App.—Beaumont 2007, no pet.).
It is not necessary for us to address that issue as we find the ongoing participation of counsel during the trial
amounted to a form of hybrid representation.
                                                        13
and may have a duty to do so.” Rhoten, 299 S.W.3d at 356 (citing Asberry v. State, 813 S.W.2d

526, 531 (Tex. App.—Dallas 1991, writ ref’d).

       Dolph’s punishment was within the range of punishment set forth in Section 12.42(d) of

the Texas Penal Code. See TEX. PENAL CODE ANN. § 12.42(d) (West Supp. 2013). This section

does not contain provisions allowing imposition of the $10,000.00 fine assessed in this case. See

id.; Harris v. State, 903 S.W.2d 514, 515 (Tex. App.—Texarkana 1995, no pet.) (“[T]here is no

statutory provision for a fine as habitual offender.”); Goodwin v. State, 694 S.W.2d 19, 29 (Tex.

App.—Corpus Christi 1985, pet. ref’d) (holding trial court erred by assessing fine under Section

12.42(d)); Carey v. State, 677 S.W.2d 821, 823 (Tex. App.—Fort Worth 1984, no pet.)

(concluding similarly). Thus, we modify the judgment to delete the $10,000.00 fine.

IV.    Conclusion

       We modify the judgment to delete the assessment of a fine. As modified, we affirm the

trial court’s judgment.




                                              Jack Carter
                                              Justice

Date Submitted:           December 4, 2013
Date Decided:             December 20, 2013

Publish




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