Steven Lee Merrill v. State ( 2017 )

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-17-00005-CR
STEVEN LEE MERRILL, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 52nd District Court
Coryell County, Texas
Trial Court No. 15-23115
Before Morriss, C.J., Moseley and Burgess, JJ.
Memorandum Opinion by Chief Justice Morriss
MEMORANDUM OPINION
Indicted for online solicitation of a minor in Coryell County,1 Steven Lee Merrill pled
guilty without the benefit of a plea agreement, was adjudged guilty, and was sentenced to seven
years’ confinement.
Merrill’s court-appointed appellate counsel has filed a brief that outlines the procedural
history of the case, provides a detailed summary of the evidence elicited during the course of the
trial court proceedings, and states that counsel has found no meritorious issues to raise on appeal.
Meeting the requirements of Anders v. California, counsel has provided a professional evaluation
of the record demonstrating why there are no arguable grounds to be advanced on appeal. Anders
v. California, 386 U.S. 738, 743–44 (1967); In re Schulman, 252 S.W.3d 403, 406 (Tex. Crim.
App. 2008) (orig. proceeding); Stafford v. State, 813 S.W.2d 503, 509–10 (Tex. Crim. App. 1991);
High v. State, 573 S.W.2d 807, 812–13 (Tex. Crim. App. [Panel Op.] 1978). Counsel also filed a
motion with this Court seeking to withdraw as counsel in this appeal. Counsel provided Merrill
with copies of the brief, the appellate record, and the motion to withdraw. Counsel also informed
Merrill of his right to review the record and file a pro se response. By letter dated April 4, 2017,
this Court informed Merrill that his pro se response, if any, was due on or before May 4, 2017.
Merrill did not file a pro se response and did not request an extension of time in which to file such
a response.
1
Originally appealed to the Tenth Court of Appeals, this case was transferred to this Court by the Texas Supreme
Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001 (West 2013). We are unaware
of any conflict between precedent of the Tenth Court of Appeals and that of this Court on any relevant issue. See
TEX. R. APP. P. 41.3.
2
We have determined that this appeal is wholly frivolous, except for the adjustment of
assessed costs of court as set out below. We have independently reviewed the entire appellate
record, and we agree that no arguable issue supports an appeal. See Bledsoe v. State, 178 S.W.3d
824, 826–27 (Tex. Crim. App. 2005).
In the Anders context, once we determine that the appeal is without merit and is frivolous,
we must either dismiss the appeal or affirm the trial court’s judgment. See Anders, 386 U.S. 738.
There is, however, an assessed cost that must be struck from the trial court’s judgment and
its Exhibit A, the Order to Withdraw Funds from Merrill’s Inmate Account.
As part of the total bill of costs, Merrill was assessed $100.00 for “Child Abuse
Prevention.” An assessment of court costs in that amount has been authorized in cases in which
the defendant has been convicted of certain listed offenses. “A person convicted of an offense
under Section 21.02, 21.11, 22.011(a)(2), 22.021(a)(1)(B), 43.25, 43.251, or 43.26, Penal Code,
shall pay $100 on conviction of the offense.” TEX. CODE CRIM. PROC. ANN. § 102.0186(a) (West
Supp. 2016). But Merrill was convicted under a different statute than one of those listed above.
See TEX. PENAL CODE ANN. § 33.021 (West 2016). Thus, that $100.00 assessment must be struck
from the costs assessed against Merrill.
Two other costs assessed against Merrill appear to be irregular. Merrill was assessed for
“Judicial Support Fee CR” in the amount of $4.00 and for “Jury Reimbursement Fee” in the
amount of $6.00. Those appear to be switched, in that $6.00 is authorized for the judicial support
fee in criminal cases and $4.00 is authorized for juror reimbursement. Since those appear to have
been switched, the total costs assessed for the two items have not been increased, and Merrill has
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not therefore been harmed, those errors do not call for any adjustment to the costs assessed in this
case. See Cook v. State, No. 10-12-00204-CR, 2014 WL 1016242, at *1–2 (Tex. App.—Waco
Mar. 13, 2014, no pet.) (mem. op., not designated for publication).
Having found it necessary to reduce the assessed costs by $100.00, we modify the trial
court’s judgment to reflect that the amount of court costs is not $354.00, but instead is the total of
$254.00. See TEX. R. APP. P. 43.2(b). We also modify Exhibit A, the incorporated Order to
Withdraw Funds from Merrill’s Inmate Account to delete the assessment of $354.00 and to state
that the total amount of “court costs, fees and/or fines and/or restitution” is $254.00. See Ballinger
v. State, 405 S.W.3d 346, 350 (Tex. App.—Tyler 2013, no pet.); Reyes v. State, 324 S.W.3d 865,
868 (Tex. App.—Amarillo 2010, no pet.).
We modify the judgment and its Exhibit A as set forth above and affirm the so-modified
judgment of the trial court.2 See TEX. R. APP. P. 43.2(b).
Josh R. Morriss III
Chief Justice
Date Submitted: July 3, 2017
Date Decided: July 21, 2017
Do Not Publish
2
Since we agree that this case presents no reversible error, we also, in accordance with Anders, grant counsel’s request
to withdraw from further representation of Appellant in this case. See Anders, 386 U.S. at 744. No substitute counsel
will be appointed. Should Appellant desire 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 file a pro se petition for discretionary
review. Any petition for discretionary review (1) must be filed within thirty days from either the date of this opinion
or the date on which the last timely motion for rehearing was overruled by this Court, see TEX. R. APP. P. 68.2, (2)
must be filed with the clerk of the Texas Court of Criminal Appeals, see TEX. R. APP. P. 68.3, and (3) should comply
with the requirements of Rule 68.4 of the Texas Rules of Appellate Procedure, see TEX. R. APP. P. 68.4.
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