                                  In The
                             Court of Appeals
                    Seventh District of Texas at Amarillo
                            ________________________

                                 No. 07-12-0434-CR
                            ________________________


                RICHARD ALEXANDER CERBANTEZ, APPELLANT

                                           V.

                         THE STATE OF TEXAS, APPELLEE



                         On Appeal from the 242nd District Court
                                   Hale County, Texas
                Trial Court No. B18832-1106, Honorable Ed Self, Presiding


                                   March 22, 2013

                           MEMORANDUM OPINION
                     Before Quinn, C.J., and Campbell and Pirtle, JJ.


      Appellant Richard Alexander Cerbantez appeals the judgment revoking his

deferred adjudication community supervision, finding him guilty and assessing

sentence. His court-appointed appellate counsel has filed a motion to withdraw and an
Anders 1 brief. We will grant counsel's motion to withdraw, modify the judgment of the

trial court, modify the withholding order directing appellant to pay attorney’s fees, and

affirm the judgment as modified.


      By indictment filed in June 2011, appellant was charged with aggravated sexual

assault of a child. 2 He plead guilty to the charge and stipulated to supporting evidence

of guilt. The trial court accepted his plea but deferred a finding of guilt, and placed him

on community supervision for a period of ten years.


      On February 13, 2012, the State filed a motion to proceed with an adjudication of

guilt. The motion alleged multiple violations of the terms of appellant's community

supervision order including new criminal offenses, failing to report to his community

supervision officer, failing to keep his address and employment information updated as

required, failing to honor curfew as required, failing to make payments, failing to

complete required community service, failing to report new arrests as required, and

failing to attend and successfully complete the Plainview Regional Sex Offender

Program.


      At the hearing on the State’s motion, appellant plead “true” to each of the State’s

allegations. 3 Appellant testified he had difficulty maintaining employment and admitted


      1
        Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); see
In re Schulman, 252 S.W.3d 403 (Tex.Crim.App. 2008).
      2
          Tex. Penal Code Ann. § 22.021(a)(1)(B)(i)(2)(B) (West 2012).
      3
        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).


                                            2
his failure to report to his supervision officer on some occasions.                  He also

acknowledged he gave a police officer a false name when arrested and fled from an

officer who attempted to arrest him. He took responsibility for each of the violations of

the terms of his deferred adjudication community supervision. Appellant’s community

supervision officer testified appellant performed poorly on community supervision,

committed new offenses while on probation, and recommended his guilt be adjudicated

and he be sentenced to time in prison. Appellant presented the testimony of witnesses

on his behalf.


       Following presentation of the evidence, the trial court found appellant guilty as

charged, revoked his deferred adjudication community supervision, and sentenced him

to twenty years of imprisonment.


       Appellant's appointed appellate counsel has filed a motion to withdraw supported

by an Anders brief. In counsel's opinion, nothing in the record establishes reversible

error and the appeal is frivolous. The brief discusses the case background, the grounds

alleged for revocation, and the evidence presented at the hearing. The brief cites

applicable law. Correspondence from counsel to appellant indicates counsel supplied

appellant a copy of the Anders brief and counsel's motion to withdraw, and advised

appellant of his right to file a response. By letter, this court also notified appellant of his

opportunity to submit a response to the Anders brief and motion to withdraw filed by his

counsel. Appellant did not file a response.


       In conformity with the standards set out by the United States Supreme Court, we

do not rule on the motion to withdraw until we have independently examined the record.



                                              3
Nichols v. State, 954 S.W.2d 83, 86 (Tex.App.—San Antonio 1997, no pet.). If this court

determines the appeal arguably has merit, we will remand it to the trial court for

appointment    of   new    counsel.   Stafford   v.   State,   813       S.W.2d   503,   511

(Tex.Crim.App.1991). We have reviewed the entire record to determine whether there

are any arguable grounds which might support an appeal. Penson v. Ohio, 488 U.S. 75,

109 S.Ct. 346, 102 L.Ed.2d 300 (1988); Bledsoe v. State, 178 S.W.3d 824

(Tex.Crim.App. 2005). We have found no arguable grounds supporting a claim of

reversible error, and agree with counsel that the appeal is frivolous.


       The judgment adjudicating guilt contains the following statement, “The Court

finds the defendant agreed to pay attorney's fees for trial counsel as a part of the plea

bargain. Accordingly, the Court ORDERS the defendant to pay trial attorney's fees in

the amount of $695.00.” However, the record does not contain a determination by the

trial court of appellant's ability to pay attorney's fees. Tex. Code Crim. Proc. Ann. art.

26.05(g) (West 2011). Rather, the record shows trial and appellate counsel were

appointed for appellant on the basis of indigence. Accordingly, we modify the trial

court's judgment by deleting the trial court’s order concerning payment of attorney’s

fees. See Wolfe v. State, No. 07-10-0201-CR, 2012 Tex. App. LEXIS 5368, at *10-11

(Tex. App.—Amarillo July 6, 2012, no pet.), (finding evidence was insufficient to support

the trial court's assessment of attorney's fees as court costs, though payment of fees

had been a condition of appellant's community supervision); Mayer v. State, 274 S.W.3d

898, 902 (Tex.App.—Amarillo 2008), aff'd, 309 S.W.3d 552 (Tex.Crim.App. 2010)

(judgment modified). We also modify the withholding order obligating appellant to pay

attorney’s fees by deleting the attorney’s fees from the sum subject to collection. See


                                             4
Reyes v. State, 324 S.W.3d 865, 868 (Tex.App.—Amarillo 2010, no pet.) (modifying

judgment and withholding order); see also Garcia v. State, No. 07-09-00357-CR, 2011

Tex.App. LEXIS 2714 (Tex.App.—Amarillo April 12, 2011, no pet.) (mem. op., not

designated for publication) (same).


       Accordingly, we grant counsel's motion to withdraw, 4 modify both the judgment

and the withholding order by deleting the attorney’s fees, and affirm the judgment of the

trial court as modified.




                                                 James T. Campbell
                                                     Justice



Do not publish.




       4
        Counsel shall, within five days after the opinion is handed down, send his client
a copy of the opinion and judgment, along with notification of the defendant's right to file
a pro se petition for discretionary review with the Court of Criminal Appeals. Tex. R.
App. P. 48.4.


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