NO. 07-11-0045-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL C

JULY 27, 2012

______________________________

DIANNE HOPKINS, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

_________________________________

FROM THE 119TH DISTRICT COURT OF TOM GREEN COUNTY;

NO. B-10-0068-SA; HONORABLE BEN WOODWARD, JUDGE

_______________________________

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

MEMORANDUM OPINION

Following a plea of not guilty, Appellant, Dianne Hopkins, was convicted by a jury 

of murder, with special findings of sudden passion and use of a firearm. Punishment 

was assessed at twenty years confinement. In presenting this appeal, counsel has filed 

an Anders1brief in support of a motion to withdraw. We modify a portion of the trial 

 

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Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).
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court's judgment, grant counsel=s motion to withdraw, and affirm the judgment as 

modified.

FACTUAL BACKGROUND

At the time of the offense, Appellant was sixty years old, disabled, lived alone 

and suffered from various medical conditions. The deceased was a young woman in 

her twenties. Both of them lived in the same trailer park and were hostile toward each 

other due to a prior altercation that occurred in February 2009. During that altercation 

the deceased allegedly assaulted Appellant, requiring a visit to the emergency room, 

after Appellant kicked the deceased's car. 

On the morning of September 22, 2009, the deceased was driving with her 

children down the dirt road exiting the trailer park when a sprinkler hanging from 

Appellant's fence sprayed her in the face. The deceased backed her car into 

Appellant's driveway, exited the car and went to Appellant's front door to complain about 

the sprinkler. According to Appellant's statement,2since the February assault she lived 

in fear of the deceased and customarily answered the door armed with a .38 revolver 

and pepper spray. According to a witness, the deceased repeatedly beat on the door, 

shouted obscenities and ordered Appellant to open the door. Although the evidence is 

conflicting as to what transpired between the two when Appellant finally opened the 

 

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Appellant did not testify during the guilt/innocence phase of the trial.
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door,3the end result was that Appellant shot the deceased in the left side of her chest. 

Both Appellant and a neighbor immediately called 911. 

Evidence presented at trial demonstrated that Appellant and the deceased were 

both confrontational people. There was also testimony that each had made threats 

against the other. Defense counsel tried the case under a theory of self-defense and 

the jury was properly charged. The jury, however, rejected that theory and found 

Appellant guilty of murder. During the punishment phase of trial, evidence was 

presented that Appellant acted with sudden passion arising from an adequate cause.

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The jury answered Appellant's sudden passion issue in the affirmative and assessed 

her punishment at twenty years confinement. 

ANDER'S BRIEF AND MOTION TO WITHDRAW

In support of his motion to withdraw, Appellant's counsel certifies he has 

conducted a conscientious examination of the record and, in his opinion, the record 

reflects no potentially plausible basis to support an appeal. Anders v. California, 386 

U.S. 738, 744-45, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); In re Schulman, 252 S.W.3d 

403, 406 (Tex.Crim.App. 2008). Counsel candidly discusses why, under the controlling 

authorities, the appeal is frivolous. See High v. State, 573 S.W.2d 807, 813 

(Tex.Crim.App. 1978). Counsel has demonstrated he has complied with the 

 

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In her 911 call, Appellant states the deceased was attempting to grab her. A witness and friend of the 

deceased testified that Appellant opened the door just three or four inches with no conversation and shot 

the deceased.

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If at the punishment stage, a defendant raises the issue of sudden passion and proves the issue in the 

affirmative by a preponderance of the evidence, the offense is a second degree felony. Tex. Penal Code 

Ann. § 19.02(d) (West 2011).
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requirements of Anders and In re Schulman by (1) providing a copy of the brief to 

Appellant, (2) notifying her of the right to file a pro se response if she desired to do so, 

and (3) informing her of the right to file a pro se petition for discretionary review. In re 

Schulman, 252 S.W.3d at 408.5 By letter, this Court granted Appellant an opportunity to 

exercise her right to file a response to counsel=s brief, should she be so inclined. Id. at 

409 n.23. Appellant did file a response. The State filed a letter brief agreeing with the 

trial court's judgment and indicating it would not be filing a response on the merits.

ANALYSIS

A person is guilty of murder if he or she intentionally or knowingly causes the 

death of an individual. Tex. Penal Code Ann. § 19.02(b) (West 2011). Upon the law of 

self-defense, a person is justified in using force against another when and to the degree 

the actor reasonably believes the force is immediately necessary to protect himself or 

herself against the other's use or attempted use of unlawful force. Id. at § 9.31(a). Selfdefense does not justify the use of force against another in response to verbal 

provocation alone. Id. at § 9.31(b)(1). The sine qua non of self-defense is the 

defendant's subjective state of mind. Smith v. State, 676 S.W.2d 584, 585 

(Tex.Crim.App. 1984).

 

5Notwithstanding that Appellant was informed of her right to file a pro se petition for discretionary review 

upon execution of the Trial Court=s Certification of Defendant=s Right of Appeal, counsel must comply with 

Rule 48.4 of the Texas Rules of Appellate Procedure which provides that counsel shall within five days 

after this opinion is handed down, send Appellant a copy of the opinion and judgment together with 

notification of her right to file a pro se petition for discretionary review. In re Schulman, 252 S.W.3d at 

408 n.22 & at 411 n.35.
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Murder is a first degree felony punishable by confinement for life or for any term 

of not more than 99 years or less than 5 years. Id. at § 12.32(a). If, however, during 

the punishment stage of a murder trial, the defendant raises the issue of sudden 

passion arising from an adequate cause and proves that issue in the affirmative by a 

preponderance of the evidence, the crime is punishable as a second degree felony with 

a maximum sentence of twenty years confinement. Id. at §§ 19.02(d) and 12.33(a). 

The core concept of "sudden passion" is that at the moment of the killing the actor's 

mental state rendered him or her incapable of rational thought and collected action. 

See Perez v. State, 323 S.W.3d 298, 305 (Tex.App.--Amarillo 2010, pet. ref'd). See 

also Swearingen v. State, 270 S.W.3d 804, 820 (Tex.App.--Austin 2008, pet. ref'd). 

While sudden passion doesn't justify the actor's conduct, it may ameliorate the 

appropriate punishment.

Here, Appellant was given an appropriate self-defense charge which the jury 

considered and rejected. The jury was also properly instructed on the law pertaining to 

sudden passion, which it accepted.

By the Anders brief counsel raises three arguable issues, to-wit: (1) sufficiency of 

the evidence to support the conviction; (2) sufficiency of the evidence to prove that 

Appellant did not act in self-defense; and (3) ineffectiveness of trial counsel. Counsel 

then analyzes the potential issues and concludes they have no merit. We agree. We 

have also made a thorough and independent review of the record and we find no other 

potentially plausible basis to support an appeal. 
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PRO SE RESPONSE

When we have an Anders brief by counsel and a pro se response by an 

appellant, we have two choices. We may determine that the appeal is wholly frivolous 

and issue an opinion explaining that we have reviewed the record and find no reversible 

error, Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex.Crim.App. 2005) (citing Anders, 

386 U.S. at 744); or we may determine that arguable grounds for appeal exist and 

remand the cause to the trial court so that new counsel may be appointed to brief 

issues. Id. (citing Stafford v. State, 813 S.W.2d 503, 510 (Tex.Crim.App. 1991)).

We have independently examined the entire record to determine whether there 

are any non-frivolous issues which might support the appeal. See Penson v. Ohio, 488 

U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988); In re Schulman, 252 S.W.3d at 409;

Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim.App. 1991). We have found no such 

issues. See Gainous v. State, 436 S.W.2d 137 (Tex.Crim.App. 1969). After reviewing 

the record, counsel=s brief, and Appellant=s pro se response, we agree with counsel that 

there are no plausible grounds for appeal. See Bledsoe, 178 S.W.3d at 824. 

ATTORNEY'S FEES

We do note, however, a clerical issue not raised by Appellant regarding the 

assessment of attorney's fees.6 The Bill of Costs reflects that Appellant owes $500 in

court-appointed attorney's fees and the judgment reflects that Appellant owes court 

 

6When a defendant appeals his conviction, courts of appeals have jurisdiction to address any error in that 

case. Pfeiffer v. State, 363 S.W.3d 594, 599 (Tex.Crim.App. 2012). Where, as here, the error appears 

on the face of the judgment and does not involve the merits of the criminal trial, but instead addresses the 

clerical correctness of the judgment, we find that the interest of justice dictates that we address the issue. 
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costs in accordance with that bill. In order to assess attorney's fees in a judgment, a 

trial court must determine the defendant has financial resources that enable him or her 

to offset in part or in whole the costs of legal services provided. Tex. Code Crim. Proc. 

Ann. art. 26.05(g) (West Supp. 2011). Furthermore, the record must reflect some 

factual basis to support that determination. Barrera v. State, 291 S.W.3d 515, 518 

(Tex.App.--Amarillo 2009, no pet.); Perez v. State, 280 S.W.3d 886, 887 (Tex.App.--

Amarillo 2009, no pet.). The record in this case does not contain any evidence to 

support such a determination. Therefore, we conclude that the inclusion of attorney's 

fees in the court ordered costs was improper. See Mayer v. State, 309 S.W.3d 552, 

555-56 (Tex.Crim.App. 2010). When the evidence does not support an order to pay 

attorney's fees, the proper remedy is to delete the order. Id. at 557. Accordingly, we 

modify the judgment to delete the order that Appellant pay $500 in court-appointed 

attorney's fees.

CONCLUSION

Counsel's motion to withdraw is granted and as modified, the trial court=s 

judgment is affirmed. 

Patrick A. Pirtle

 Justice 

Do not publish.