Opinion filed November 15 , 201 8



### In The 

# Eleventh Court of Appeals

_____ _ _____ 

### No. 11

- 1 8

- 00 099

- CR

____ _ ______ 

### GEORGE ALCALA GONZALES , Appellant

V.
THE STATE OF TEXAS , Appellee

On Appeal from the 32nd District Court

Nolan County, Texas Trial Court Cause No

. 12300

M E M O R A N D U M O P I N I O N Based upon an open plea of guilty, the trial court convicted Appellant, George
Alcala Gonzales , of the offense of tampering with or fabricating physical evidence

. Appellant pleaded true to both enhancement allegations , and the trial court assessed
his punishment at confinement for twenty

- five years and a fine of $1, 0 00

. We modify and affirm

. Appellant’s court

- appointed counsel has filed a motion to withdraw. The motion is supported by a brief in which counsel professionally and conscientiously2

examines the record and applicable law and conclude s that the appeal is frivolous. Counsel has prov ided A ppellant with a copy of the brief , the motion to withdraw, and the appellate record. Counsel advised A ppellant of his right to review the record and file a response to counsel’s brief. A ppellant has not filed a response

. 1 Counsel also advised Appe llant of his right to file a petition for discretionary review in order to seek review by the Texas Court of Criminal Appeals

. See T EX

. R. A PP

. P . 48.4 , 68

. Court

- appointed counsel has complied with the requirements of Anders v. California , 386 U.S. 738 (1967); Kelly v. State , 436 S.W.3d 313 (Tex. Crim. App. 2014); In re Schulman , 252 S.W.3d 403 (Tex. Crim. App. 2008); and Stafford v.
State , 813 S.W.2d 503 (Tex. Crim. App. 1991). Following the procedures outlined
in Anders and Schulman , we have independe ntly reviewed the record, and we agree with counsel that no arguable grounds for appeal exist

. 2 We note, however, that the judgment contains a nonreversible error. The record reflects that Appellant was convicted of a third

- degree felony but was sentenced as a habitual offender under Section 12.42(d) of the Penal Code. See T EX

. P ENAL C ODE A NN

. § 12.42(d) (West Supp. 2018) , § 37.09(a)(1), (c) (West 2016 ).
Section 1 2.42(d) does not authorize the imposition of a fine. See id. § 12.42(d);
Blevins v. State , 74 S.W.3d 125, 132 (Tex. App.

— Fort Worth 2002, pet. ref’d).
Because the fine imposed by the trial court is not authorized by the applicable statute, we modify the t rial court’s judgment to delete the fine. See Light v. State , No. 05

- 99

- 01384

- CR, 2000 WL 1176604, at *1 (Tex. App.

— Dallas Aug. 21, 2000, no pet.)

1 T his c ourt granted Appellant more than thirty days in which to exercise h is right to file a response to counsel’s brief.

2 We note that Appellant has a right to file a petition for discretionary review pursuant to T EX

. R. A PP

. P. 68.3

(not designated for publication) ( Anders appeal in which appellate court modified trial court’s judgment to delete an unauthorized fine)

. We grant counsel’s motion to withdraw, modify the judgment of the trial court to delete the $1,000 fine, and affirm the judgment as modified

.

PER CURIAM

November 15 , 201 8 Do not publish. See T EX

. R. A PP

. P. 47.2(b).
Panel consists of: Bailey, C.J., Willson, J., and Wright, S.C.J. 3
Willson, J., not participating.

3 Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 1 1th District of Texas at Ea stland, sitting by assignment.