
                                          NO. 07-10-0335-CR

                                       IN THE COURT OF APPEALS

                                  FOR THE SEVENTH DISTRICT OF TEXAS

                                             AT AMARILLO

                                               PANEL E

                                            AUGUST 19, 2011






                                BRANDON MICHAEL PENNINGTON, APPELLANT


                                                  v.


                                     THE STATE OF TEXAS, APPELLEE





                            FROM THE 181ST DISTRICT COURT OF POTTER COUNTY;

                             NO. 43,164-B; HONORABLE JOHN B. BOARD, JUDGE





Before QUINN, C.J., and PIRTLE, J., and BOYD, S.J.[1]


                                          MEMORANDUM OPINION

       Appellant,  Brandon  Michael  Pennington,  appeals  from  a  judgment  revoking  his  deferred
adjudication community supervision, adjudicating him guilty  of  the  offense  of  intentionally  and
knowingly possessing a controlled substance, methamphetamine, in an amount of 200 grams or  more  but
less than  400  grams  by  aggregate  weight  and  sentencing  him  to  fifty  years  confinement.[2]
Appellant's attorney 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 there are no non-frivolous  issues  to  appeal.   Agreeing
with appointed counsel's conclusion that the record fails to  show  any  arguably  meritorious  issue
that could support the appeal, we affirm the trial court's judgment.

       In  December  2000,  Appellant  was  indicted  for  possession  of  a  controlled   substance,
methamphetamine, in an amount of 200 grams or more but less than 400 grams by aggregate  weight.   In
June 2001, pursuant to a plea agreement, Appellant pleaded guilty as charged in the  indictment,  and
received deferred adjudication community supervision for a period  of  ten  years  and  a  $10,000.00
fine.  Appellant's deferred adjudication was conditioned on his compliance with the  specified  terms
and conditions of  the  trial  court's  Order  Deferring  Adjudication  And  Placing  [Appellant]  On
Community Supervision.

       In April 2010, the State filed a Motion to Proceed with  Adjudication  of  Guilt  on  Original
Charge alleging three  violations  of  the  terms  of  Appellant's  deferred  adjudication  community
supervision.  In July 2010, the State filed an Amended Motion to Proceed with Adjudication  of  Guilt
on Original Charge (Motion) adding two additional violations of the  terms  of  Appellant's  deferred
adjudication community supervision.  This Motion was heard by the trial court in July 2010.   At  the
hearing, the State  waived  two  allegations  and  Appellant  pled  "true"  to  the  remaining  three
allegations.  Thereafter, the trial court heard evidence from three deputies  of  the  Potter  County
Sheriff's Office, Appellant's Probation Officer and Appellant.

      Based on Appellant's pleas of "true" and the evidence provided at the hearing, the trial  court
revoked Appellant's community supervision, adjudicated him  guilty  of  possession  of  a  controlled
substance as alleged in the December 2000 indictment and  assessed  his  punishment  at  fifty  years
confinement.  The trial court certified Appellant's right to appeal, and he timely filed a notice  of
appeal.

      Thereafter, Appellant's appointed appellate counsel filed a motion to withdraw certifying  that
he has conducted a conscientious examination of the record and, in his opinion, the  record  reflects
no potentially plausible basis to support an appeal.  Anders, 386 U.S. at  744-45;  In  re  Schulman,
252 S.W.3d 403,  406  (Tex.Crim.App.  2008).   Counsel  candidly  discusses  why,  under  controlling
authorities, the appeal is frivolous.  See High v. State, 573 S.W.2d 807, 813  (Tex.Crim.App.  1978).
Counsel has also demonstrated that he has  complied  with  the  requirements  of  Anders  and  In  re
Schulman by (1) providing a copy of the brief to Appellant, (2) notifying him of his right to file  a
pro se response if he desired to do so, and (3) informing him of his right to file a pro se  petition
for discretionary review.  In re Schulman, 252 S.W.3d  at  408.[3]   Appellant  did  file  a  pro  se
response to his counsel's brief.[4]  The State filed no response to either Appellant's brief  or  pro
se response.

       By his Anders brief, counsel raises  two  arguable  issues.   Counsel  questions  (1)  whether
Appellant's trial counsel was ineffective because he permitted Appellant to plead "true" to three  of
the State's allegations and (2) whether the trial court had  jurisdiction  to  consider  the  State's
Motion.  Counsel then candidly reviews each arguable issue and explains why no  reversible  error  is
presented.

      When we have an Anders brief by counsel and a pro se response by  an  appellant,  we  have  two
choices.  We may determine that the appeal is wholly frivolous and issue an opinion  explaining  that
we have reviewed the record and find no reversible error; Bledsoe v. State, 178  S.W.3d  824,  826-27
(Tex.Crim.App. 2005) (citing Anders, 386 U.S. at 744), or, we may  determine  that  arguable  grounds
for appeal exist and remand the cause to the trial court so that new  counsel  may  be  appointed  to
brief issues.  Id. (citing Stafford v. State, 813 S.W.2d 503, 510 (Tex.Crim.App. 1991)). "Only  after
the issues have been briefed by new counsel may  a  court  of  appeals  address  the  merits  of  the
issues."  178 S.W.3d at 827.

      We have reviewed counsel's arguments and we have independently examined the  entire  record  to
determine whether there are any non-frivolous issues which might support the appeal.  See  Penson  v.
Ohio, 488 U.S. 75, 80, 109 S.Ct. 346, 102 S.Ct. 346, 102 L.Ed.2d 300  (1988);  In  re  Schulman,  252
S.W.3d at 409; Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim.App. 1991).  We have  found  no  such
issues.  See Gainous v. State, 436  S.W.2d  137,  138  (Tex.Crim.App.  1969).   After  reviewing  the
record, counsel's brief and Appellant's pro se response, we find nothing in  the  record  that  might
arguably support the appeal.  See Bledsoe, 178 S.W.3d at 826-27 (holding that  it  is  constitutional
error for an appellate court to address nonmeritorious arguments raised in a pro se  response  to  an
Anders brief).

      Here, the record provides no reason to doubt that Appellant freely, knowingly, and  voluntarily
entered his plea of "true" to three allegations contained in the State's Motion.  A  plea  of  "true"
to even one allegation in the State's Motion is sufficient to support a judgment  revoking  community
supervision.  Cole v. State, 578 S.W.2d 127, 128 (Tex.Crim.App. 1979); Lewis  v.  State,  195  S.W.3d
205, 209 (Tex.App.--San Antonio 2006, pet. denied).


      In addition, we note that the  judgment  adjudicating  guilt  contains  language  ordering  the
Appellant to pay court costs in accordance with an attached Bill of Costs, which includes  attorney's
fees of $1,200.00.[5]  Court costs  and  the  assessment  of  attorney's  fees  pursuant  to  article
26.05(g) of the Texas Code of Criminal Procedure, as reflected in a  certified  bill  of  costs,  are
effective regardless of whether or not they were orally pronounced  in  open  court  or  specifically
stated in the judgment.  Armstrong v. State,  340  S.W.3d  759,  766-67  (Tex.Crim.App.  2011).   The
assessment of attorney's fees must, however, be supported by  sufficient  evidence.   Without  record
evidence demonstrating a defendant's financial ability to offset  the  costs  of  legal  services,  a
trial court errs if it orders reimbursement of court-appointed attorney's fees.  See Tex. Code  Crim.
Proc. Ann. art. 25.05(g) (West Supp. 2010); Mayer v. State,  309  S.W.3d  552  (Tex.Crim.App.  2010).
Here, the record contains no evidence and no determination by the  trial  court  that  Appellant  has
financial resources enabling him to pay such fees.  Accordingly, the District  Clerk  is  ordered  to
amend the Bill of Costs by  deleting  the  obligation  to  pay  attorney's  fees  in  the  amount  of
$1,200.00.  See Haney v. State, No. 07-09-0205-CR, 2010 Tex.  App.  LEXIS  7229,  at  *2  (Tex.App.--
Amarillo Sept 1, 2010, no pet.) (mem. op., not designated for  publication)  (modifying  judgment  by
deleting order to pay attorney's fees before affirming conviction in frivolous appeal under  Anders).


      Accordingly, counsel's motion to  withdraw  is  granted  and  the  trial  court's  judgment  is
affirmed as modified by the amended Bill of Costs.



                                             Patrick A. Pirtle
                                                   Justice
Do not publish.
-----------------------
[1]John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment.  Tex. Gov't
Code Ann. § 75.002(a)(1) (West 2005).

[2]See Tex. Health & Safety Code Ann. § 481.114(d) (West 2010).   This  offense  is  a  first  degree
felony punishable by imprisonment for any term of not more than life or  ninety-nine  years  or  less
than five years and a fine not to exceed $10,000.00.  Tex. Penal Code § 12.32 (West 2011).

[3]Notwithstanding that Appellant  was  informed  of  his  right  to  file  a  pro  se  petition  for
discretionary review upon execution of the  Trial  Court's  Certification  of  Defendant's  Right  of
Appeal, counsel must comply with Rule 48.4 of the Texas Rules of Appellate Procedure  which  provides
that counsel shall within five days after this opinion is handed down, send Appellant a copy  of  the
opinion and judgment together with  notification  of  his  right  to  file  a  pro  se  petition  for
discretionary review.  Tex. R. App. P. 48.4; See In re Schulman, 252 S.W.3d at 408 n.22 & 411 n.35.

[4]By his pro se response, Appellant raises four issues.  He questions (1) whether  his  counsel  was
ineffective, (2) whether the trial court should have sua sponte  ordered  that  Appellant  undergo  a
competency examination; (3) whether his sentence is excessive, (4) whether the testimony  offered  by
deputies of the Potter County Sheriff's Department was biased and hearsay and (5) whether  the  trial
court should have held a suppression hearing.

[5]The Clerk's  Record  includes  a  Judgment  Adjudicating  Guilt,  signed  August  2,  2010,  which
references "Court Costs: see attached," immediately followed by a Bill  of  Costs,  dated  August  6,
2010, which includes attorney's fees in the sum of $1,200.00.



