Dale Edward Woodard v. the State of Texas ( 2023 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-21-00165-CR
___________________________
DALE EDWARD WOODARD, Appellant
V.
THE STATE OF TEXAS
On Appeal from the 297th District Court
Tarrant County, Texas
Trial Court No. 1578369R
Before Wallach, J.; Sudderth, C.J.; and Walker, J.
Per Curiam Memorandum Opinion
MEMORANDUM OPINION
A grand jury indicted Appellant Dale Edward Woodard for aggravated sexual
assault of a child, a first-degree felony. See Tex. Penal Code Ann. § 22.021(a)(1)(B),
(2)(B), (e). Appellant pled not guilty, and after voir dire, a visiting trial judge (the trial
court) presided over his trial. The jury acquitted Appellant of the indicted offense but
convicted him of the lesser-included offense of indecency with a child by contact, a
second-degree felony. See id. § 21.11(a)(1), (d). After hearing the punishment evidence,
the jury assessed Appellant’s punishment at four years’ confinement. The trial court
sentenced Appellant in accordance with the jury’s verdict, and he timely appealed.
Because we agree with Appellant’s appointed appellate counsel that no arguable
grounds for appeal exist but that the amount of court costs imposed is erroneous, we
affirm the trial court’s judgment as modified.
Appellant’s appointed appellate counsel has filed a motion to withdraw and a
brief supporting that motion. In the brief, counsel opines that this appeal is frivolous.
Counsel’s brief and motion meet the Anders requirements by presenting a professional
evaluation of the record and demonstrating why there are no arguable grounds for
relief. See Anders v. California, 386 U.S. 738, 744–45, 87 S. Ct. 1396, 1400 (1967); In re
Schulman, 252 S.W.3d 403, 406–12 (Tex. Crim. App. 2008) (orig. proceeding). Counsel
also complied with requirements detailed in Kelly. See Kelly v. State, 436 S.W.3d 313,
319–20 (Tex. Crim. App. 2014). Appellant had the opportunity to file a pro se
response to the Anders brief but did not do so; likewise, the State did not 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. 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. 2006) (noting Bledsoe’s holding that a memorandum opinion
suffices in an Anders case when an appellate court agrees that the appeal is frivolous).
However, we also agree that the amount of court costs imposed is erroneous.
Only court costs that are “statutorily authorized . . . may be assessed against a
criminal defendant.” Johnson v. State, 423 S.W.3d 385, 389 (Tex. Crim. App. 2014);
Segura v. State, No. 02-21-00052-CR, 2022 WL 2840143, at *1–2 (Tex. App.—Fort
Worth July 21, 2022, no pet.) (mem. op., not designated for publication). As explained
in a similar case, the 2019 “Cost Act overhauled the statutory court cost scheme in
criminal cases, increasing the state consolidated fee from $133[] to $185[] and creating
a new local consolidated fee[]” of $105. Gonzales-Ortiz v. State, Nos. 03-21-00532-CR,
03-21-00533-CR, 2022 WL 17722906, at *1–2 (Tex. App.—Austin Dec. 16, 2022, no
pet.) (omitting internal quotation marks and related citation); see also Act of May 23,
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2019, 86th Leg., R.S., ch. 1352, S.B. 346, §§ 1.03, 1.05 (amending Loc. Gov’t Code
§ 133.102(a)(1) and creating Loc. Gov’t Code § 134.101). The Cost Act’s new and
modified fees apply to offenses occurring on and after January 1, 2020. 86th Leg.,
R.S., ch. 1352, S.B. 346, §§ 5.01, 5.04.
Appellant’s 2014 offense was subject to the statutory cost provisions in effect
when he committed it. Id. § 5.01; Gonzales-Ortiz, 2022 WL 17722906, at *2; see Segura,
2022 WL 2840143, at *2. However, the district clerk assessed and the trial court
ordered Appellant to pay a local consolidated court cost of $105 and a state
consolidated court cost of $185. The newly created local consolidated court cost fee
should not have been assessed against Appellant. See Gonzales-Ortiz,
2022 WL 17722906, at *2. Additionally, under former Section 133.102(a)(1), the state
consolidated court cost fee assessed should have been only $133, not $185. See id.;
Segura, 2022 WL 2840143, at *2; see also Act of June 2, 2003, 78th Leg., R.S., ch. 209,
§ 62(a), 2003 Tex. Gen. Laws 979, 996, amended by Act of May 23, 2019, 86th Leg.,
R.S., ch. 1352, S.B. 346, § 1.03 (current version at Tex. Loc. Gov’t Code Ann.
§ 133.102(a)(1)).
We may modify the judgment and bill of costs to impose the proper statutory
costs, and we may do so even in an Anders appeal. See Johnson, 423 S.W.3d at 390;
Segura, 2022 WL 2840143, at *2; see also Bray v. State, 179 S.W.3d 725, 726 (Tex.
App.—Fort Worth 2005, no pet.) (en banc) (holding appellate court has authority to
modify judgment in Anders appeal). We therefore (1) modify the trial court’s judgment
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and bill of cost to remove the local consolidated court cost of $105 and to reduce the
state consolidated court cost imposed to $133, (2) grant counsel’s motion to
withdraw, and (3) affirm the trial court’s judgment as modified.
Per Curiam
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: March 30, 2023
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