NO. 07-10-00504-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO
PANEL A MAY 23, 2012

LINDA ROBINSON TOLBERT, APPELLANT

v. THE STATE OF TEXAS, APPELLEE

FROM THE 181ST DISTRICT COURT OF RANDALL COUNTY; NO. 19,251-B; HONORABLE JOHN B. BOARD, JUDGE

Before CAMPBELL and HANCOCK and PIRTLE, JJ.

MEMORANDUM OPINION Appellant Linda Robinson Tolbert appeals her convic tion and sentence for hindering apprehension or prosecution 1 following the revocation of her deferred adjudication community supervision. Her co urt-appointed appellate counsel has filed a

1 See Tex. Penal Code Ann. § 38.05(a) (West 2011). Because the person appellant harbored or concealed was under arrest for, charge d with, or convicted of a felony, the punishment for appellant’s offens e was elevated to a third degree felony. Tex. Penal Code Ann. § 38.05(d) (West 2011). A third degree felony is punishable by imprisonment for any term of not more than 10 years or less than 2 years and a fine not to exceed $10,000. Tex. Penal Code Ann. § 12.34(a),(b) (West 2011).2 motion to withdraw supported by an Anders 2 brief. We will grant counsel’s motion to withdraw, modify the j udgment to delete taxation of appel lant with attorney’s fees, and affirm the judgment as modified.
Background
In November 2007, a Randall County grand jury indicted appellant for the offense of hindering apprehension or prosecution. Appellant plead guilty to the charged offense. At a June 2008 hear ing, the trial cour t deferred a finding of guilt and placed appellant on deferred adjudication community supervision for a term of four years. It also assessed a fine of $1,000.
The State filed a motion to proceed with adj udication of guilt in August 2010. It alleged appellant failed to comply with seven conditi ons of her community supervision order. The alleged violations included sm oking methamphetamine and failing to submit to urinalysis at the request of the community supervision department.

At the November 2010 hearin g of the State’s motion, appellant entered an open plea of true to each of the a lleged violations of community supervision. Appellant’s community supervision officer testified t hat his “biggest concern” with appellant’s prospect of success on community supervisi on was her drug use. He added that appellant tested positive for methamphetamine and admitted use of this substance to him. The officer recommended placement of appellant in a substance abuse felony punishment facility. Appellant also testif ied. Concerning use of illegal drugs, she

2 Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); see In re Schulman, 252 S.W.3d 403 (Tex.Cri m.App. 2008) (orig. pr oceeding) (“[T]he sole purpose of an Anders brief is to explain and suppor t the motion to withdraw”).3 admitted smoking methamphetami ne at a party, using marijuan a for thirty-eight years, and failing on three occasions to submit to ur inalysis in fear the re sult would be positive for marijuana. There was testimony from appellant and her community supervision officer that appellant did not have problems keeping the terms of her community supervision order until her husband of twenty-six years died in 2009.
At the conclusion of the hearing, the trial court found appellant violated her community supervision order and adjudicat ed her guilty of hindering apprehension. Punishment was assessed at confinement in prison for five years and a fine of $1,000. A written judgment si gned on December 6, 2010, inco rrectly recited appellant’s sentence and fine were according to the te rms of a plea bargain. A judgment nunc pro tunc signed on February 16, 2011, deleted the reference to terms of a plea bargain.
Analysis
Appellant’s counsel on appeal ex presses his opinion in the Anders brief that nothing in the record establishes reversible error and the appeal is frivolous. The brief discusses the case background, the grounds alleged for re vocation, and the evidence presented at the hearing. Counsel disc usses two grounds of potential error but concludes the trial court di d not abuse its discretion by revoking appellant’s community supervision and imposing a sentence within the permissible range. Correspondence from counsel to appellant indicates c ounsel supplied appella nt a copy of the Anders brief and counsel’s motion to withdraw. The correspondence also points out the right of appellant to review the record and file a pro se response and her right to file a pro se petition for discretionary review in the Cour t of Criminal Appeals should she receive an4 adverse decision by this court. By letter, this court also notif ied appellant of her opportunity to submit a response to the Anders brief and motion to withdraw filed by her counsel. 3 Appellant did not file a response.
In conformity with the standards set out by the United States Supreme Court, we will not rule on the motion to withdraw until we have independently examined the record. Nichols v. State, 954 S.W.2d 83, 86 (Tex.App.--San Antoni o 1997, no pet.). If this court determines the appeal arguably has merit, we will remand it to the trial court for appointment of new counsel. Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim.App. 1991). We have reviewed the entire record to determine whether there are any arguable grounds which might support an appeal. See Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988); Bledsoe v. State, 178 S.W.3d 824 (Tex.Crim.App. 2005). We have found no su ch arguable grounds s upporting a claim of reversible error, and agree with couns el that the appeal is frivolous.
The judgment orders that appellant repay all court costs. The clerk’s bill of costs includes the entry “attorney fees $400.00.” However, the record does not contain a determination by the trial court of appellant’s ability to pay attorney’s fees. Tex. Code Crim. Proc. Ann. art. 26.05(g) (West Supp. 2011). Rather, the record shows trial and appellate counsel were appointed for appellant on the basis of indigence. Accordingly, we modify the trial court’s judgment by addin g the following provis ion at page 2 beneath

3 A pro se response “is not a merits brief, it is merely an informal opportunity for the indigent defendant to present what he believes are claims or issues or areas of procedural or substantive conc ern that arguably deserve a full merits brief by a second attorney.” In re Schulman, 252 S.W.3d at 409 n.23.5 the heading “Furthermore, the following spec ial findings or orders apply”: “As used herein the term ‘court costs’ does not in clude court appointed attorney’s fees.” See Mayer v. State, 274 S.W.3d 898, 902 (Tex.App.--Amarillo 2008), aff'd, 309 S.W.3d 552 (Tex.Crim.App. 2010) (judgment modified).

Conclusion
The motion of counsel to withdraw is gr anted and, as modified, the judgment of the trial court is affirmed. 4 Tex. R. App. P. 43.2(b).

James T. Campbell Justice

Do not publish.

4 Counsel shall, within five days after t he opinion is handed down, send his client a copy of the opinion and judgmen t, along with notification of t he defendant’s right to file a pro se petition for discretionary review . Tex. R. App. P. 48.4.