Kyle Evan Allen v. State ( 2020 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-19-00274-CR
___________________________
KYLE EVAN ALLEN, Appellant
V.
THE STATE OF TEXAS
On Appeal from the 355th District Court
Hood County, Texas
Trial Court No. CR14342
Before Wallach, Birdwell, and Bassel, JJ.
Per Curiam Memorandum Opinion
MEMORANDUM OPINION
Appellant Kyle Evan Allen appeals from the trial court’s revocation of his
deferred adjudication community supervision, adjudication of his guilt, and sentence
of twenty-four months’ confinement. We agree with Appellant’s appointed appellate
counsel that this appeal is meritless as to the revocation, conviction, and sentence.
However, we modify the trial court’s judgment and incorporated order to withdraw
funds to delete an improperly assessed filing fee. We therefore affirm the trial court’s
judgment as modified.
Appellant pled guilty pursuant to a plea bargain to possession of less than one
gram of a controlled substance (methamphetamine) in exchange for four years’
deferred adjudication, a $1500 fine, $180 in restitution, 300 hours of community
service, and substance-abuse treatment as determined by a presentence investigation.
See Tex. Health & Safety Code Ann. §§ 481.102(6), .115(a), (b); Tex. Penal Code Ann.
§ 12.35(a). The trial court followed the bargain and placed Appellant on deferred
adjudication for four years. Less than three weeks later, he tested positive for
methamphetamine, and his community supervision officer recommended that as
additional conditions of community supervision, Appellant serve eight days in jail and
complete the TAIP1 Substance Abuse Program, an outpatient program. Appellant
agreed to the trial court’s order amending his conditions of community supervision in
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Treatment Alternative to Incarceration Program.
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accordance with the officer’s recommendations. The order specified that Appellant’s
eight days in jail would be served on weekends from 8:00 p.m. Friday through 8:00
a.m. Monday, beginning Friday, March 22, 2019 and continuing each consecutive
weekend until all eight days were served.
On March 29, 2019, the State filed a motion to proceed with an adjudication of
Appellant’s guilt, alleging that he violated his conditions of community supervision by
not reporting to his community supervision officer and by failing to begin his eight
days in jail on or about March 22, 2019. After a hearing, the trial court found the
allegations true, revoked Appellant’s community supervision, adjudicated his guilt, and
sentenced him to twenty-four months’ confinement, awarding him 205 days’ credit
for time served.
Appellant’s appointed appellate counsel has filed a motion to withdraw and a
brief complying with Anders v. California, representing that there is nothing in the
record that might arguably support this appeal. 386 U.S. 738, 744–45, 87 S. Ct. 1396,
1400 (1967). Counsel’s brief and motion meet the requirements of Anders by
presenting a professional evaluation of the record and demonstrating why there are no
arguable grounds for relief. See id.; In re Schulman, 252 S.W.3d 403, 406–12 (Tex. Crim.
App. 2008) (orig. proceeding) (analyzing the effect of Anders). Appellant had the
opportunity to file a pro se response to the Anders brief but did not do so, nor did the
State file a brief.
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After an appellant’s court-appointed attorney files a motion to withdraw on the
ground that an appeal is frivolous and fulfills the requirements of Anders, we must
independently examine the record. See Stafford v. State, 813 S.W.2d 503, 511 (Tex.
Crim. App. 1991). Only then may we grant counsel’s motion to withdraw. See Penson
v. Ohio, 488 U.S. 75, 82–83, 109 S. Ct. 346, 351 (1988). We have carefully reviewed
the record and counsel’s brief.
After reviewing the itemized bill of costs and comparing it to the costs assessed
when Appellant was first placed on deferred adjudication community supervision, we
conclude that one amount must be deleted from the total amount charged as court
costs in the judgment before us. The district clerk charged Appellant a $15 “Motion
to Proceed/Revoke Fee.” However, we find no statutory authority for this charge.
See Eubank v. State, No. 02-18-00351-CR, 2019 WL 2635564, at *2 (Tex. App.—Fort
Worth June 27, 2019, no pet.) (mem. op., not designated for publication); Thomas v.
State, No. 02-18-00337-CR, 2019 WL 166001, at *2 (Tex. App.—Jan. 10, 2019, no
pet.) (per curiam) (mem. op., not designated for publication). We therefore modify
the trial court’s judgment and incorporated order to withdraw funds to delete the $15
filing fee. See Thomas, 2019 WL 166001, at *2.
Except for this improperly imposed fee, we agree with counsel that this appeal
is wholly frivolous and without merit; we find nothing in the record before us that
arguably might support the appeal. See Bledsoe v. State, 178 S.W.3d 824, 827–28 (Tex.
Crim. App. 2005); see also Meza v. State, 206 S.W.3d 684, 685 n.6 (Tex. Crim. App.
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2006). We therefore grant counsel’s motion to withdraw and affirm as modified the
trial court’s judgment and incorporated order to withdraw funds. See Bray v. State, 179
S.W.3d 725, 726 (Tex. App.—Fort Worth 2005, no pet.).
Per Curiam
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: April 30, 2020
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