James Wilmurth v. State , 419 S.W.3d 553 ( 2013 )


Menu:
  •                                Fourth Court of Appeals
    San Antonio, Texas
    OPINION
    No. 04-12-00834-CR
    James WILMURTH,
    Appellant
    v.
    The STATE of Texas,
    Appellee
    From the 227th Judicial District Court, Bexar County, Texas
    Trial Court No. 2010-CR-0158W
    Honorable Philip A. Kazen Jr., Judge Presiding
    Opinion by:       Patricia O. Alvarez, Justice
    Sitting:          Catherine Stone, Chief Justice
    Sandee Bryan Marion, Justice
    Patricia O. Alvarez, Justice
    Delivered and Filed: November 13, 2013
    AFFIRMED AS REFORMED
    Appellant James Wilmurth filed a pro se appeal of a plea-bargained case. Counsel was
    appointed on the same day to represent Wilmurth. The issue before this court is whether, after
    diligently searching the record and researching all the applicable law, Wilmurth’s appeal is without
    merit and is frivolous. Anders v. California, 
    386 U.S. 738
    (1967) and High v. State, 
    573 S.W.2d 807
    (Tex. Crim. App. 1978).
    04-12-00834-CR
    BACKGROUND
    Appellant James Wilmurth was charged by information with his second offense of assault
    on a family member. Wilmurth waived indictment and entered a plea of no contest to the allegation
    that he assaulted his girlfriend by grabbing her by the arm and leaving a bruise. On March 15,
    2010, pursuant to a plea bargain, the trial court placed Wilmurth on deferred adjudication
    community supervision for a period of three years, assessed and probated a $500.00 fine, and
    ordered Wilmurth to have no harmful or injurious contact with the alleged victim.
    On September 30, 2011, the State filed a Motion to Enter Adjudication of Guilt based on
    Wilmurth’s violations of his community supervision, including committing a new offense of theft
    and by failing to pay his fines and fees assessed by the court. After a hearing, the trial court
    continued Wilmurth on community supervision, but (1) levied a sanction of 170 days confinement
    in the Bexar County Jail and (2) increased his court fees to include the subsequent court-appointed
    attorney’s fees.
    On November 6, 2012, the State filed a second Motion to Enter Adjudication of Guilt
    alleging Wilmurth committed new offenses, a violation of condition #1 of the community
    supervision, including assault on a non-family member, terroristic threats, possession of marijuana,
    and possession of an open container or consumption of alcohol. Additionally, the State alleged
    violations of condition #2 of his community supervision including consuming alcohol, using
    marijuana, and failing to remit probationary fees. At the hearing before the trial court, Wilmurth
    pled true to the violation of condition #2—consuming alcohol, using marijuana, and failing to
    remit probationary fees. Based on his plea of true, the trial court found the allegations to be true
    and entered an adjudication of guilt. The trial court revoked Wilmurth’s community supervision
    and sentenced him to five years confinement in the Institutional Division of the Texas Department
    -2-
    04-12-00834-CR
    of Criminal Justice. The trial court also assessed a fine in the amount of $500.00 and costs of
    $1,735.00 plus attorney’s fees.
    ANALYSIS
    Wilmurth’s court-appointed appellate attorney filed a brief containing a professional
    evaluation of the record in accordance with Anders v. California, 
    386 U.S. 738
    (1967); counsel
    also filed a motion to withdraw. In counsel’s brief, she states that she has reviewed the entire
    record and found no reversible error. See TEX. R. APP. P. 44.2. The brief meets the Anders
    requirements. See 
    Anders, 386 U.S. at 744
    ; see also High v. State, 
    573 S.W.2d 807
    , 813 (Tex.
    Crim. App. 1978); Gainous v. State, 
    436 S.W.2d 137
    , 138 (Tex. Crim. App. 1969). As required,
    counsel provided Wilmurth with a copy of the brief and counsel’s motion to withdraw, and
    informed Wilmurth of his right to review the record and file his own pro se brief. See Nichols v.
    State, 
    954 S.W.2d 83
    , 85–86 (Tex. App.—San Antonio 1997, no pet.); see also Bruns v. State, 
    924 S.W.2d 176
    , 177 n.1 (Tex. App.—San Antonio 1996, no pet.). The record does not reflect
    Wilmurth filed a pro se brief.
    After reviewing the record and counsel’s brief, we agree that the record contains no
    reversible error. See Bledsoe v. State, 
    178 S.W.3d 824
    , 826–27 (Tex. Crim. App. 2005).
    ASSESSMENT OF ATTORNEY’S FEES
    The record shows that in January of 2010, Wilmurth had a court-appointed attorney. Trial
    counsel was again appointed on October 19, 2011, in regards to the State’s Motion to Adjudicate
    Guilt. The appointment was “to continue, (unless relieved by the court earlier, after a finding of
    good cause is entered on the record), until charges are dismissed, the defendant is acquitted, all
    post-trial motions are resolved, notice of appeal is perfected, or until relieved by the court or
    replaced by other counsel.” Although the record does not reflect that the appointed attorney
    -3-
    04-12-00834-CR
    withdrew from the case, Wilmurth had new counsel, presumably appointed, on November 29,
    2012, when the trial court adjudicated Wilmurth’s guilt.
    The record before this court does not contain an affidavit of indigency for appointment of
    counsel before the trial. See TEX. CODE CRIM. PROC. ANN. 26.05(g) (West Supp. 2013); Wiley v.
    State, No. PD-1728-12, 
    2013 WL 5337093
    , at *2 (Tex. Crim. App. Sept. 25, 2013). The record
    does, however, include the appointment of counsel to represent Wilmurth at the trial level.
    Accordingly, we conclude the record supports that Wilmurth was indigent and unable to employ
    counsel. See Wiley, 
    2013 WL 5337093
    , at *2 (explaining defendant previously found indigent is
    presumed to remain indigent); Cates v. State, 
    402 S.W.3d 250
    , 251 (Tex. Crim. App. 2013)
    (quoting TEX. CODE CRIM. PROC. ANN. art. 26.04(p) (West Supp. 2013)) (“[A] ‘defendant who is
    determined by the court to be indigent is presumed to remain indigent for the remainder of the
    proceedings in the case unless a material change in the defendant’s financial circumstances
    occurs.’”).
    CONCLUSION
    We affirm the trial court’s judgment, see 
    Bledsoe, 178 S.W.3d at 826
    –27, and grant
    appellate counsel’s motion to withdraw, see 
    Nichols, 954 S.W.2d at 85
    –86; 
    Bruns, 924 S.W.2d at 177
    n.1. However, because attorney’s fees may not be assessed against Wilmurth, we modify the
    judgment and bill of costs to delete the assessment of attorney’s fees. See Moore v. State, No. 09-
    11-00622-CR, 
    2012 WL 4470898
    , at *1 (Tex. App.—Beaumont Sept. 26, 2012, no pet.) (mem.
    op., not designated for publication).
    No substitute counsel will be appointed. Should Wilmurth wish to seek further review of
    this case by the Texas Court of Criminal Appeals, he must either retain an attorney to file a petition
    for discretionary review or he must file a pro se petition for discretionary review. Any petition for
    discretionary review must be filed within thirty days from (1) the date of this opinion or (2) the
    -4-
    04-12-00834-CR
    date the last timely motion for rehearing or en banc reconsideration is overruled by this court. See
    TEX. R. APP. P. 68.2. Any petition for discretionary review must be filed with the clerk of the
    Texas Court of Criminal Appeals. See 
    id. R. 68.3(a).
    Any petition for discretionary review must
    comply with the requirements of Rule 68.4 of the Texas Rules of Appellate Procedure. See 
    id. R. 68.4.
    Patricia O. Alvarez, Justice
    PUBLISH
    -5-
    

Document Info

Docket Number: 04-12-00834-CR

Citation Numbers: 419 S.W.3d 553

Filed Date: 11/13/2013

Precedential Status: Precedential

Modified Date: 1/12/2023