## In The Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06

- 22

- 00086

- CR

STEVEN BRANT HALEY , Appellant

V. THE STATE OF TEXAS , Appellee

On Appeal from the 102nd District Court Red River County, Texas Trial Court No. CR01895

B efore S tevens , C.J., van Cleef and Rambin , JJ. Memorandum Opinion by Justice van Cleef2 

### ME MORANDUM OPINION
On December 10, 2012, Steven Brant Haley was convic t ed of operating a motor vehicle while intoxicated, with two or more previous convictions rela ting to the operating of a motor vehicle while intoxicated, a third

- deg ree felony. 1 In accordance with a plea

- bargain agre ement , the trial court sentenced Haley to ten yea r s’ imprisonment, suspended the sentence, placed him

on community supervision for t e n years , a nd assessed a fine of $1,000.00 and court costs of $1,008.00

. After Haley violated the terms of his community super vision order several times by

cons uming alcoho l , the trial court revoked Haley’s community supervision , sentenced him to ten
year s ’ imprison ment , and assessed $75.00 in reimbursement fees

. Haley appeals his revocation

. Appointed counsel filed an Anders brief. 2 See Anders v. California , 386 U.S. 738, 744 (1967); Gainous v. State , 436 S.W.2d 137, 138 (Tex. Crim. App. 1969). In And ers , t he United States Supreme Court recognized that counsel, though appointed to represent the appellant in an appeal from a criminal conviction, ha s no duty to pursue a frivolo u s matter on appeal. Anders , 386 U.S. at 744. By letter, counsel informed Ha ley of his right s to review the record and file a
pro se response. Counsel also mailed Haley copies of the clerk’s and re porter’s records , and this Court notified him that any p r o se response was due on or before November 28 , 2022

. Also, by letter dated Dec emb er 8 , 2022 , we notified Haley that the case would be submitted on briefs on
Dec ember 29 , 2022

. Haley did not file a pro se response

.

1 See T EX
. P ENAL C ODE A NN
. § 49.09( b)(2) (Supp.)

.
2 Ap pointed counsel also filed a motion to withdraw as counsel.3

After a thorough review of the recor d, counsel in this case concluded that th ere were no

non - frivolous issues in Haley ’ s appeal

. Counsel’s brief meets the requirements of Anders by presenting a professional evaluation of the record that demonstrates why there are no arguable grounds to be a dvanced. We conclude that counsel perfor med the duties required of appoint ed

couns el. See A nders , 386 U.S. at 744; see also Kelly v. State , 436 S.W.3d 313 , 319

– 20 (Tex. Crim. App. 201 4); In re Schulman , 252 S.W.3d 403, 407 (Tex. Crim. App. 2008) (orig.
p roceeding)

. We must, “after a full examin ation of all the proceedings , . . . decide whether th e case is wholly frivolous.” Anders , 386 U.S. at 744; see Penson v. Ohio , 488 U.S . 75, 82

– 83 (1988); accord St afford v. State , 813 S.W.2d 503, 509

– 11 (Tex. Crim. App. 1991). An appeal is “wholly frivo l ous” or “without merit ” when it “ lacks any basis in l aw or fact.” McCoy v. Court of Appeals of Wis ., Dist. 1 , 486 U.S. 429, 438 n.10 (1988). Based on o ur independent review of the entire record in this appeal, we conclude that no rever sible error exists . In the An ders context, once we deter m ine th at t he appeal does not contain reversible error , we must affirm the trial court’s judgment. “However, appellate courts a re authorized to reform judgm ents and affirm as modified in Anders cases involving no n - reversible erro r .” Mitchell v. State , 653 S. W.3d 295, 297 (Tex. App.

— Texarkana 2022, no pet. ) (comprehensively discussing appellate c ases that have modified judgm ents in And ers cases). In this case, Haley was indi c ted for and convicted of operating a mo tor vehicle whi l e intoxicated, with two or mo re previous c o nvictions relating to the operating of a motor vehicle while intoxicated as set forth in Section 49.09(b )(2) of the Texas Penal Code. See T EX
. P ENAL4

C ODE A NN
. § 49.09(b)(2). However, the trial court’s judg men t of conviction that revoked Hal ey’ s communit y supervision (Revocation Judgment) , under “ Statute for Offense , ” r ecites , “49.04 Penal Code.” F or that rea son, we will modify the trial court’s judgment to reflect the statute of of

fense as Sect ion 4 9

. 0 9 (b)(2) of the Texas Penal Code. The t rial court’s jud gment of conviction that placed Haley on community supervision in cluded a fine of $1,000.00 an d court cos ts of $1,008.00. Under the trial court’s order imposing conditions of community supervi sion, H aley was ordered to pay the fine and cou rt co sts

. 3 T he certified bill of costs inc luded the itemized costs, fe es , and fine accumulated duri ng the entirety of th e case and recited a “TOTAL COST OF CAUSE” of $2,833.00 , a credit to Haley in the
amount of $ 2 , 758.00, and an “Amount due from []Defend ant” of $75.0 0. It appears that the $75.00 remaining after apply ing the credit to Haley is re lated to additional s heriff’s f ees charged after Haley was placed on community supervision

. T his i s because t he bi ll of costs includes a charge for “SHERIFFS F EE CRIMINAL ” in the amount of $195.00. Excluding any charges for
t he fine and attorney fees, th e total court costs including $195.00 for the sheriff’s fee is $583.00.
Ha l ey paid all o f the court co sts ($508.00 ) ordered under t he community su pervision order

. Subtractin g $508.00 from $58 3.00 leaves $75.00

. Also, th e trial court’s Revocation Jud gment , under “Reimbursement Fees , ” recites $75.00.
Article 102.011 of the Texas Code of Crimin al Procedure provides tha t a defendant convicted of a felo ny must re imbu rse fees to a peace officer for certain se rvices , includ ing “ $5 for commitment o r rele ase . ” T EX
. C ODE C RIM
. P ROC
. A NN
. art. 102.011(a) (6) (Supp

. )

. There is

3 The order itemized the $1,008. 00 of courts costs a ssessed in its judgment as c ourt costs of $508.00 and a cour t

appointed a ttorney fee of $500.00.5

support in the record tha t Haley was committed to j ail thre e times and was rel eased from jail two times after h e was pla ced on community supervision. Th at would require Haley to pay $25.00 in reimbursement of peace officer fees. Howev e r, we find no support in the record of any other circumstance for whic h a pea ce officer ’s fee is statutorily allowed. See T EX
. C O DE C RIM
. P ROC
. A NN
. a rt. 102.011 (Supp.) . Consequently, we find tha t th e r ecord supports only $25. 00 in peace officer ’s fees after Haley was placed on community sup ervision. For that reason, we will mo dify the trial court ’s Revocation Judgme nt by changin g the amount under “Reimburse ment Fees” to $25.00. We will also modify the certified bill of costs by changing the amount of “SHERIFFS FEE CRIMINAL” to $145.00, the amount of “TOTAL COST OF CAUSE ” to $2 , 783.00, and the

amo unt under “Amount du e from []Defe ndan t” to $25.00. Further, we fin d that Haley ’s counsel substantially compl ied with the requirements of Anders and Kelly

. Therefore, we grant counsel’s motion to withd raw. See Anders , 386 U.S. a t 744; Kel ly , 436 S.W.3d at 31 8

– 20. Should a ppellant desi re t o seek further review of this case by the Texas Court of Criminal Appea ls, appellant must either retain an attorney to file a petition for discretionary review or f ile a pro se petition for di scretionar y review. 4 Any peti tion for discreti onary review (1) must be filed within thirty d ays from either the date of this opinion o r the date on which the last timely motion for r ehearing was overruled by this Court, see T EX . R. A PP . P. 68.2, (2) m ust be filed

w ith the clerk of the Texas Court of C riminal Appea ls, see T EX . R. A PP . P. 68.3, and (3) should

4 While an appellant has a right to file a petiti on for discretionary review with the Texas Court of Crimin a l Appeals, review is not a matter of right. See T EX
. R. A PP
. P. 66.2; T EX
. C ONS T
. art. V , § 5(b).6

comply with the requirements o f Rule 68.4 of the Texas Rules of Appellate Pro c edure, see T EX
. R. A PP . P. 68.4. We modify th e certified bill of cost s by (1) chang ing the amount charg ed for “SHERIFFS FEE CRIMINAL” to $145.00 , (2) changing the amo unt charged for “TOTAL COST OF CAUSE” to $ 2 , 783.00 , and (3) changing the amount under “Amount due from []Defendant” to $25.00. We also m odify the trial court’s ju dgment by ch anging the “Statute for Offense” to Section 49.0 9 (b)(2) of the Texas Penal Code and by changing the amount under “ Reimbursem ent Fees ” to $2 5 .00

. As modified, w e aff i rm the trial court’s judgment.

Charles van Clee f Justice Date Submitted: December 29, 2022 Date Decided: J anuary 10 , 20 2 3 Do Not Publis h