Full Opinion (html_with_citations)

                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-18-00341-CR

KENNETH DWAYNE ANDERSON,
                                                            Appellant
v.

THE STATE OF TEXAS,
                                                            Appellee



                           From the 54th District Court
                            McLennan County, Texas
                           Trial Court No. 2017-959-C2


                 MEMORANDUM OPINION ON REMAND

      Kenneth Dewayne Anderson was convicted of injury to an elderly individual

while using or exhibiting a deadly weapon. See TEX. PENAL CODE § 22.04. We delivered

our original memorandum opinion and judgment in this case on December 18, 2019.

Anderson v. State, No. 10-18-00341-CR,
2019 Tex. App. LEXIS 10969
 (Tex. App.—Waco

Dec. 18, 2019). The Court of Criminal Appeals vacated our judgment on May 12, 2021,

and remanded the case to us for proceedings consistent with its opinion in Dulin v. State,
620 S.W.3d 129
 (Tex. Crim. App. 2021). See Anderson v. State, No. PD-0063-20,
2021 Tex. Crim. App. Unpub. LEXIS 411
 (Tex. Crim. App. May 12, 2021) (per curiam). On remand,
we modify and affirm the trial court’s judgment.

ANDERS BRIEF

         Before the Court of Criminal Appeals reversed and remanded this case to us,

Anderson’s appointed counsel filed a motion to withdraw and a brief in support of the

motion asserting that he has diligently reviewed the appellate record and that, in his

opinion, the appeal is frivolous pursuant to the United States Supreme Court opinion in

Anders, but also presenting nonreversible error in the judgment pursuant to this Court’s

order in Allison. See Anders v. California,
386 U.S. 738
,
87 S. Ct. 1396
,
18 L. Ed. 2d 493
 (1967);

Allison v. State,
609 S.W.3d 624
, 628 (Tex. App.—Waco 2020, order).

         Counsel's brief evidences a professional evaluation of the record for error and

compliance with the other duties of appointed counsel. We conclude that counsel has

performed the duties required of appointed counsel. See Anders,
386 U.S. at 744
; High v.

State,
573 S.W.2d 807, 812
 (Tex. Crim. App. 1978); see also Kelly v. State,
436 S.W.3d 313, 319-320
 (Tex. Crim. App. 2014); In re Schulman,
252 S.W.3d 403, 407
 (Tex. Crim. App.

2008).

         In reviewing the Anders portion of this appeal, we must, "after a full examination

of all the proceedings, ... decide whether the case is wholly frivolous." Anders,
386 U.S. at 744
; see Penson v. Ohio,
488 U.S. 75, 80
,
109 S. Ct. 346
,
102 L. Ed. 2d 300
 (1988); accord Stafford

v. State,
813 S.W.2d 503, 509-11
 (Tex. Crim. App. 1991). An appeal is "wholly frivolous"

or "without merit" when it "lacks any basis in law or fact." McCoy v. Court of Appeals,
486 U.S. 429
, 439 n. 10,
108 S. Ct. 1895
,
100 L. Ed. 2d 440
 (1988). In our review, we have paid

particular attention to the issues identified in Anderson's multiple pro se responses to

counsel's brief in support of the motion to withdraw. After a review of the entire record

Anderson v. State                                                                           Page 2
in this appeal, we have determined the appeal to be wholly frivolous. See Bledsoe v. State,
178 S.W.3d 824, 826-27
 (Tex. Crim. App. 2005); Cummins v. State,
646 S.W.3d 605
, 620-

621(Tex. App.—Waco 2022, pet. ref'd).

NONREVERSIBLE ERRORS

       As noted previously, despite finding no reversible error, in briefing on remand,

Anderson’s counsel presented several issues of nonreversible errors.           Those issues

concern certain court costs included in the Certified Bill of Cost. Specifically, counsel

challenges $10 in commitment fees, $5 in warrantless arrest fees; $50 for executing a

capias; a $2 e-filing fee; a $15 conditional time payment fee; and $25, combined, as a

separate time payment fee. We agree that all the fees complained of by Anderson, except

for the $50 capias execution fee, constitute nonreversible errors.

       Assessment of Costs

       On appeal, we review an assessment of court costs to determine if there is a basis

for the cost, not to determine if there was sufficient evidence offered at trial to prove each

cost. Johnson v. State,
423 S.W.3d 385, 390
 (Tex. Crim. App. 2014). We separately examine

each item of cost to which Anderson has lodged a complaint on appeal.

       — $10 commitment fees

       Anderson asserts that two $5 commitment fees were improperly assessed because

there were no commitment orders for which fees could be assessed.

       Under article 102.011 of the Code of Criminal Procedure, a defendant convicted of

a felony or a misdemeanor must pay certain fees "for services performed in the case by a

peace officer . . . ." See TEX. CODE CRIM. PROC. art. 102.011. One of the fees to be assessed

for the service of peace officers is "$5 for commitment or release."
Id.
 art. 102.011(a)(6).

Anderson v. State                                                                       Page 3
This language refers to a defendant's commitment to and release from jail. Williams v.

State,
495 S.W.3d 583, 591
 (Tex. App.—Houston [1st Dist.] 2016, pet. dism’d,

improvidently granted). A “commitment” is an order signed by the proper magistrate

directing a sheriff to receive and place in jail the person so committed. TEX. CODE CRIM.

PROC. art. 16.20.

        Anderson was indicted on June 7, 2017 and reindicted on February 14, 2018. A

capias was issued by the district clerk on each of those dates. Noted on each capias is a

$5 commitment fee. Further, according to a description of the charges for the entries in

the Certified Bill of Cost, those fees noted on each capias were assessed on the same date

as each capias. There is nothing in the record to show that a proper magistrate signed a

commitment order, as defined by the Code of Criminal Procedure, that would authorize

a commitment fee at either time.

        The State asserts that a notation in the trial court’s docket sheet, showing a

commitment order was issued and delivered to the Sheriff’s Office, covers one of the

commitment fees. But the commitment order relied upon by the State was issued on

November 6, 2018. The description of the charges in the Certified Bill of Cost indicates

the fees were assessed on June 7, 2017 and February 14, 2018.1 Thus, neither of the fees



1
 A Certified Bill of Cost was not a part of the trial court’s judgment, nor was it made a part of the original
Clerk’s Record. However, one was created and included, upon request by this Court, in a Supplemental
Clerk’s Record filed on October 5, 2021. An explanation of the cost and fees included in the Certified Bill
of Cost was subsequently requested and is included in another Supplemental Clerk’s Record filed on
November 1, 2021. The Certified Bill of Cost, dated October 1, 2021, and contained in the October 5, 2021,
Supplemental Clerk’s Record, is the Certified Bill of Cost relevant to this case, and no other document
should be considered by the parties, the trial court, or the District Clerk as the bill of cost. Accordingly, we
use the phrase, “Certified Bill of Cost,” to refer to the bill of cost included in the October 5, 2021,
Supplemental Clerk’s Record.

Anderson v. State                                                                                       Page 4
were assessed in conjunction with the November-issued commitment order.

       Accordingly, after reviewing the statutes and the record in this case, we agree that

there is no basis for the two $5 commitment fees.

       — $5 warrantless arrest fees

       Two separate warrantless arrest fees of $5.00 were assessed: one on June 16, 2017

and one on March 7, 2018. The parties agree that the assessment of the March 7, 2018

warrantless arrest fee was improper. After reviewing the caselaw and the record in this

case, we agree there is no basis for the $5.00 March 7, 2018 warrantless arrest fee.

       — $50 for executing a capias

       Anderson contends that the Clerk erroneously issued a second capias after

Anderson’s reindictment for which the Sheriff’s Office charged a $50 execution fee.

Anderson does not complain that the amount of the fee was incorrect or could not be

charged because nothing supported its collection. Nor does he contend that the capias

was not issued. Rather, he contends the capias was unnecessary and should not have

been issued. Therefore, his argument continues, he should not have been charged for its

issuance.

       In reviewing the record, we find that there is a basis for the fee. See TEX. CODE

CRIM. PROC. art. 102.011(a)(2)(A).      Anderson contends he was in jail when the

reindictment was handed down; thus, he relies on the last sentence of article 23.03,

subsection (a) of the Texas Code of Criminal Procedure, “[a] capias or summons need not

issue for a defendant in custody or under bond[,]” to support his claim that the capias

was erroneously issued. See
id.
 at art. 23.03(a). However, the operative phrase in this

sentence is “need not.” And when compared to the first sentence of that same subsection,

Anderson v. State                                                                      Page 5
“[a] capias shall be issued by the district clerk upon each indictment for felony presented,”
id.
 (emphasis added), we must conclude that the clerk has discretion to issue a capias if

the defendant is in custody or out on bail. See e.g. In re Durnin,
619 S.W.3d 250
, 257 n.3

(Tex. 2021) (“’Shall’ ‘denotes mandatory action,’ leaving no room for discretion.” (citation

omitted)). In other words, in this situation, the issuance of a capias is not prohibited; it is

simply not required.

        Accordingly, because the clerk had the discretion to issue the second capias, its

issuance was not erroneous; and because the clerk had actually issued the capias, there is

a basis for the fee.

        — $2 e-filing fee

        Anderson asserts, and the State agrees, that there is no basis for a $2 e-filing fee.

We agree. At the time of Anderson’s conviction, the Government Code allowed for a $5

e-filing fee. See Act of May 16, 2013, 83d Leg., R.S., ch. 1290, § 2, sec. 51.851(d),
2013 Tex. Gen. Laws 3270
, 3271 (repealed 2019).                 That $5 fee was properly assessed.                 The

Government Code no longer allows for an electronic filing fee, and there is no other

statute that provides for an additional $2 e-filing fee. See TEX. GOV’T CODE § 51.851

(current version showing e-filing fee repealed). 2

        Thus, after reviewing the statutes and the record in this case, we agree that there



2
  Local Government Code section 133.102 now provides for a percentage of a consolidated fee to be
designated for the “statewide electronic filing system account.” See TEX. LOC. GOV’T CODE § 133.102(e).
That provision was effective January 1, 2020. For offenses committed after January 1, 2004, and before
January 1, 2020, the date range within which Anderson’s offense was committed, the money collected as
court costs “shall be allocated according to the percentages provided in Subsection (e), as that subsection
existed and was applied on December 31, 2019.” Id. (d). Subsection (e), as it existed and was applied on
December 31, 2019, did not have an e-filing fee allocation. See Acts of 2011, 82nd Leg., ch. 1249 (S.B. 1664),
§ 13(b), effective September 1, 2013. Thus, no statutory authority for the collection of a $2 e-filing fee
existed at the time Anderson committed or was convicted of the offense.
Anderson v. State                                                                                      Page 6
is no basis for the assessment of a $2 e-filing fee.

       — $15 conditional time payment fee

       Anderson asserts that a $15 time payment fee, conditioned on “full payment of

court costs, reimbursement fees, fines and costs” being paid within 30 days of the

judgment should be deleted. A $15 time payment fee is permitted by article 102.030(a) of

the Texas Code of Criminal Procedure if a “fine, court costs, restitution, or another

reimbursement fee” is not paid in full before the 31st day after the date on which the

judgment is entered assessing such. See TEX. CODE CRIM. PROC. art. 102.030(a). However,

article 102.030 does not apply to Anderson’s case because the offense he committed

occurred in 2017. See Act of May 23, 2019, 86th Leg., R.S., ch. 1352, § 5.01 2019 Tex. Gen.

Laws at 4035 (“Except as otherwise provided by this Act, the changes in law made by this

Act apply only to a cost, fee, or fine on conviction for an offense committed on or after

the effective date of this Act [January 1, 2020].”).

       The State contends that the fee should not be deleted because the fee had not

actually been assessed and that the language in the Certified Bill of Cost was merely

advisory. We agree with the State that the fee is not included in the “Grand Total” of the

fees due. However, we also agree with Anderson that because the fee does not apply to

Anderson’s case, there is no basis for the inclusion of the conditional $15 time payment

fee in the Certified Bill of Cost. Further, any time payment fee assessed or threatened is

premature. See Dulin v. State,
620 S.W.3d 129
, 133 (Tex. Crim. App. 2021); see also Bryant

v. State,
642 S.W.3d 847
, 850 (Tex. App.—Waco 2021, no pet.).

       — $25 combined time payment fee

       Finally, the parties agree that, pursuant to the Court of Criminal Appeals’ opinion

Anderson v. State                                                                    Page 7
in Dulin v. State,
620 S.W.3d 129
, 134 (Tex. Crim. App. 2021), the assessment of $25.00,

combined, as a time-payment fee in this case was premature. 3 After reviewing the

caselaw and the record in this case, we agree that the assessment of a time-payment fee

in the Certified Bill of Cost is premature, and thus conclude there is no basis for this fee.

CONCLUSION

        Accordingly, the trial court's judgment is modified to assess court cost in the

amount of $349. As modified, we affirm the trial court’s judgment, 4 and grant counsel's

motion to withdraw from representation of Anderson.




                                                  TOM GRAY
                                                  Chief Justice

Before Chief Justice Gray,
       Justice Smith, and
       Justice Wright 5
Affirmed as modified
Opinion delivered and filed December 28, 2022
Do not publish
[CR25]




3
  The Certified Bill of Cost specifically includes $25 aggregated time-payment fees (listed in the explanation
of fees as an Administrative Justice Fee—$2.50; Time Payment Fees—$10.00; Time Payment-State Fee—
$12.50) in the balance of the costs owed.
4
  The bill of cost should be modified to reflect the cost due in the judgment as modified.
5
  The Honorable Jim R. Wright, Senior Chief Justice (Retired) of the Eleventh Court of Appeals, sitting by
assignment of the Chief Justice of the Texas Supreme Court. See TEX. GOV'T CODE §§ 74.003, 75.002, 75.003.

Anderson v. State                                                                                      Page 8