Gail Mayberry v. State ( 2019 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-18-00463-CR
Gail MAYBERRY,
Appellant
v.
The STATE of Texas,
Appellee
From the 218th Judicial District Court, Wilson County, Texas
Trial Court No. 09-05-0041-CRW
Honorable Donna S. Rayes, Judge Presiding
Opinion by: Liza A. Rodriguez, Justice
Sitting: Rebeca C. Martinez, Justice
Patricia O. Alvarez, Justice
Liza A. Rodriguez, Justice
Delivered and Filed: April 10, 2019
AFFIRMED AS MODIFIED
On May 4, 2009, Appellant Gail Mayberry was charged with multiple counts of child
endangerment. After a jury trial, she was found guilty and sentenced to two years confinement in
state jail. The trial court then suspended her sentence and placed her on community supervision.
Mayberry appealed, and in 2011, this court affirmed the judgment of the trial court. See Mayberry
v. State, 351 S.W.3d 507, 509 (Tex. App.—San Antonio 2011, pet. ref’d). In March 2015 and
April 2016, the trial court amended the terms of Mayberry’s community supervision. In September
2016, the State filed a motion to revoke Mayberry’s community supervision, and in August 2017,
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the State filed an amended motion to revoke. At the January 2018 hearing on the State’s amended
motion to revoke, Mayberry entered an open plea of true to having violated the terms of her
community supervision. After an evidentiary hearing on punishment, Mayberry was sentenced to
twelve months of confinement in state jail. She then timely appealed the trial court’s judgment
revoking her community supervision.
Mayberry’s court-appointed appellate counsel has filed a brief and motion to withdraw in
accordance with Anders v. California, 386 U.S. 738 (1967). With citations to the record and legal
authority, counsel’s brief explains why no arguable points of error exist for review and concludes
that this appeal is frivolous and without merit. See id. at 744-45; High v. State, 573 S.W.2d 807
(Tex. Crim. App. 1978). The brief meets the requirements of Anders as it presents a professional
evaluation showing why there is no basis to advance an appeal. See Anders, 386 U.S. at 744-45;
High, 573 S.W.2d at 812-13. Counsel states that Mayberry was provided with a copy of the brief
and motion to withdraw, and was further informed of her right to review the record and file her
own brief. See Kelly v. State, 436 S.W.3d 313, 319-20 (Tex. Crim. App. 2014). Additionally,
counsel advised Mayberry that if she wished to review the record, she must file a motion in this
court; counsel enclosed a form motion for that purpose. See id. Mayberry filed a pro se motion for
access to the appellate record and was sent a full and complete duplicate paper copy of the clerk’s
and reporter’s records by the Clerk of this Court. Mayberry’s pro se brief was due on December
14, 2018. She did not file a pro se brief.
After conducting an independent examination of the appellate record, we find no reversible
error. We agree that the appeal is frivolous and without merit. However, in reviewing the trial
court’s judgment and the bill of costs prepared by the trial court clerk, we note that the record
indicates the trial court found Mayberry to be indigent and appointed counsel to represent her at
the revocation hearing and on appeal. We further note that the trial court’s judgment assessed
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punishment as “TWELVE (12) MONTHS STATE JAIL DIVISION, TDCJ” and did not assess a
fine. The judgment then provided that a fine and restitution are “N/A” (i.e., not applicable). The
judgment left blank the amount of court costs to be assessed against Mayberry. At the end of the
judgment, the trial court ordered Mayberry to report to the Wilson County District Clerk upon
release from confinement:
The Court orders that upon release from confinement, Defendant proceed
immediately to the Wilson County District Clerk. Once there, the Court orders
Defendant to pay, or make arrangements to pay, any remaining unpaid fines, court
courts, and restitution as ordered by the Court above.
However, the bill of costs prepared by the Wilson County District Clerk does not conform to the
trial court’s judgment. The bill of costs states that the amount of the fine is $1,000.00, the amount
of restitution to “2nd victim” is $146.00, and the amount of restitution to “3rd victim” is $146.00.
The trial court’s judgment states that these costs are not applicable in this case.
Further, because the trial court found Mayberry to be indigent and there is no indication in
the record that Mayberry’s financial status has changed, no court-appointed attorney’s fees should
be assessed against Mayberry. See Wiley v. State, 410 S.W.3d 313, 317 (Tex. Crim. App. 2013)
(explaining that a defendant who was previously found to be indigent is presumed to remain
indigent and, absent any indication in the record that the defendant’s financial status has changed,
the evidence will not support the imposition of attorney’s fees). The trial court’s judgment left
blank the amount of court costs to be assessed, while the bill of costs states the amount of “court
appointed attorney fee” is $2,537.55. Because no attorney’s fees can be assessed against Mayberry,
we modify the trial court’s judgment to make clear no assessment of attorney’s fees can be included
in court costs. We further order the trial court clerk to prepare and file a corrected bill of costs
showing that no fine, restitution, or attorney’s fees are assessed against Mayberry. See Ortiz v.
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04-18-00463-CR
State, No. 04-17-00842-CR, 2018 WL 4902967, at *1 (Tex. App.—San Antonio Oct. 10, 2018, no
pet.) (ordering corrected bill of costs in Anders appeal).
As modified, the judgment of trial court is affirmed. Appointed counsel’s motion to
withdraw is granted. See Nichols v. State, 954 S.W.2d 83, 85-86 (Tex. App.—San Antonio 1997,
no pet.); Bruns v. State, 924 S.W.2d 176, 177 n.1 (Tex. App.—San Antonio 1996, no pet.). 1
Liza A. Rodriguez, Justice
Do not publish
1
No substitute counsel will be appointed. Should appellant wish to seek further review of this case by the Texas Court
of Criminal Appeals, she 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 must be filed within thirty days from the later of (1)
the date of this opinion; or (2) the date the last timely motion for rehearing is overruled by this court. See TEX. R. APP.
P. 68.2. Any petition for discretionary review must be filed in the Texas Court of Criminal Appeals. See TEX. R. APP.
P. 68.3. Any petition for discretionary review 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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