Full Opinion (html_with_citations)

                                     IN THE
                             TENTH COURT OF APPEALS

                                 No. 10-23-00001-CR

WILLIAM MARTIN SWINNER,
                                                           Appellant
v.

THE STATE OF TEXAS,
                                                           Appellee



                             From the 87th District Court
                                 Leon County, Texas
                              Trial Court No. 22-0029CR


                                    OPINION


       William Swinner was found guilty by a jury of the state jail felony offense of

unauthorized use of a motor vehicle. See TEX. PENAL CODE ANN. § 31.07. Swinner pled

true to two alleged prior felony convictions, and the jury assessed his punishment at ten

years in the penitentiary.

       Swinner’s appointed counsel filed a motion to withdraw and an Anders brief in

support of the motion, asserting that he has diligently reviewed the appellate record and
that, in his opinion, the appeal is frivolous. See Anders v. California,
386 U.S. 738
,
87 S.Ct. 1396
,
18 L.Ed.2d 493
 (1967). 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
id. at 744
,
87 S.Ct. at 1400
; High v. State,
573 S.W.2d 807
, 812–13 (Tex. Crim. App. [Panel Op.] 1978); see

also Kelly v. State,
436 S.W.3d 313
, 319–20 (Tex. Crim. App. 2014); In re Schulman,
252 S.W.3d 403
, 407–09 (Tex. Crim. App. 2008).

        In reviewing an Anders appeal, we must, “after a full examination of all the

proceedings, . . . decide whether the case is wholly frivolous.” Anders,
386 U.S. at 744
,
87 S.Ct. at 1400
; see Penson v. Ohio,
488 U.S. 75, 80
,
109 S.Ct. 346
, 349–50,
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
, 438 n.10,
108 S.Ct. 1895
, 1902 n.10,
100 L.Ed.2d 440
 (1988).

Although provided the opportunity, Swinner has not filed a response to the motion to

withdraw or Anders brief. After a review of the entire record in this appeal, we have

determined the appeal to be wholly frivolous. See Bledsoe v. State,
178 S.W.3d 824
, 826–28

(Tex. Crim. App. 2005).

        Despite finding no reversible error in this record, counsel has identified Category

2 nonreversible error in the judgment of conviction regarding court costs and seeks

modification of the judgment. See Cummins v. State,
646 S.W.3d 605
, 616 (Tex. App.—

Waco 2022, pet. ref’d) (noting that Category 2 nonreversible error is error that is



Swinner v. State                                                                         Page 2
unpreserved but not subject to procedural default). Swinner requests modification of the

total court costs in the judgment and challenges the assessment of $500 for a “sheriff

service fee” and $40 for an “issue subpoena” fee. The original certified bill of costs dated

October 4, 2022, included both fees that are the subject of Swinner’s complaint and

reflected total court costs of $855. Swinner challenged the fees in his motion for new trial

but the record before us does not reflect the motion was ruled on by the trial court.

Regardless, a subsequent uncertified bill of costs dated January 11, 2023, is included in

the record and shows $25 for the “sheriff service fee.” Article 102.011(a)(2) of the Code

of Criminal Procedure provides for a reimbursement fee of $50 for a defendant convicted

of a felony to defray the cost of the services provided in the case by a peace officer for

executing or processing an issued arrest warrant, capias, or capias pro fine. See TEX. CODE

CRIM. PROC. ANN. art. 102.011(a)(2). Because the fee assessed in the certified bill of costs

exceeds $50, we will modify the bill of costs to reflect a $50 “sheriff service fee.”

        Swinner next challenges the $40 subpoena issuance fee. Section 51.318(b)(1) of the

Government Code authorizes the clerk to collect an $8 fee for issuing a subpoena in

criminal cases. TEX. GOV’T CODE ANN. § 51.318(b)(1); see In re Ingram,
575 S.W.3d 367, 369

(Tex. Crim. App. 2019) (Yeary, J., concurring); see also Ballard v. State, No. 08-21-00180-CR,
2022 WL 2965978
, at *2 (Tex. App.—El Paso July 27, 2022, no pet.) (not designated for

publication). Section 51.318(c) provides that “[t]he fee is the obligation of the party to the

suit or action initiating the request.” TEX. GOV’T CODE ANN. § 51.318(c). In this case, there


Swinner v. State                                                                        Page 3
is no record that Swinner applied for issuance of a subpoena. Therefore, we modify the

certified bill of costs by deleting the $40 subpoena issuance fee. See Ballard,
2022 WL 2965978
, at *2.

        We modify the judgment to reflect total court costs in the amount of $365 and

affirm the judgment as modified. Furthermore, we grant counsel’s motion to withdraw

from representation of Swinner in this appeal.




                                                 MATT JOHNSON
                                                 Justice

Before Chief Justice Gray,
       Justice Johnson, and
       Justice Smith
(Chief Justice Gray concurring)
Affirmed as modified
Opinion delivered and filed December 14, 2023
Publish
[CR25]




Swinner v. State                                                                 Page 4