Fourth Court of Appeals

San Antonio, Texas

OPINION

No. 04-12-00834-CR

James WILMURTH,

Appellant

v.

The STATE of Texas,

Appellee

From the 227th Judicial District Court, Bexar County, Texas

Trial Court No. 2010-CR-0158W

Honorable Philip A. Kazen Jr., Judge Presiding

Opinion by: Patricia O. Alvarez, Justice

Sitting: Catherine Stone, Chief Justice

Sandee Bryan Marion, Justice

Patricia O. Alvarez, Justice

Delivered and Filed: November 13, 2013

AFFIRMED AS REFORMED

Appellant James Wilmurth filed a pro se appeal of a plea-bargained case. Counsel was 

appointed on the same day to represent Wilmurth. The issue before this court is whether, after

diligently searching the record and researching all the applicable law, Wilmurth’s appeal is without 

merit and is frivolous. Anders v. California, 386 U.S. 738 (1967) and High v. State, 573 S.W.2d 

807 (Tex. Crim. App. 1978).
04-12-00834-CR

BACKGROUND

Appellant James Wilmurth was charged by information with his second offense of assault 

on a family member. Wilmurth waived indictment and entered a plea of no contest to the allegation 

that he assaulted his girlfriend by grabbing her by the arm and leaving a bruise. On March 15, 

2010, pursuant to a plea bargain, the trial court placed Wilmurth on deferred adjudication 

community supervision for a period of three years, assessed and probated a $500.00 fine, and 

ordered Wilmurth to have no harmful or injurious contact with the alleged victim.

On September 30, 2011, the State filed a Motion to Enter Adjudication of Guilt based on 

Wilmurth’s violations of his community supervision, including committing a new offense of theft 

and by failing to pay his fines and fees assessed by the court. After a hearing, the trial court 

continued Wilmurth on community supervision, but (1) levied a sanction of 170 days confinement 

in the Bexar County Jail and (2) increased his court fees to include the subsequent court-appointed 

attorney’s fees.

On November 6, 2012, the State filed a second Motion to Enter Adjudication of Guilt 

alleging Wilmurth committed new offenses, a violation of condition #1 of the community 

supervision, including assault on a non-family member, terroristic threats, possession of marijuana, 

and possession of an open container or consumption of alcohol. Additionally, the State alleged 

violations of condition #2 of his community supervision including consuming alcohol, using 

marijuana, and failing to remit probationary fees. At the hearing before the trial court, Wilmurth 

pled true to the violation of condition #2—consuming alcohol, using marijuana, and failing to 

remit probationary fees. Based on his plea of true, the trial court found the allegations to be true 

and entered an adjudication of guilt. The trial court revoked Wilmurth’s community supervision 

and sentenced him to five years confinement in the Institutional Division of the Texas Department 

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of Criminal Justice. The trial court also assessed a fine in the amount of $500.00 and costs of 

$1,735.00 plus attorney’s fees. 

ANALYSIS

Wilmurth’s court-appointed appellate attorney filed a brief containing a professional 

evaluation of the record in accordance with Anders v. California, 386 U.S. 738 (1967); counsel 

also filed a motion to withdraw. In counsel’s brief, she states that she has reviewed the entire 

record and found no reversible error. See TEX. R. APP. P. 44.2. The brief meets the Anders

requirements. See Anders, 386 U.S. at 744; see also High v. State, 573 S.W.2d 807, 813 (Tex.

Crim. App. 1978); Gainous v. State, 436 S.W.2d 137, 138 (Tex. Crim. App. 1969). As required, 

counsel provided Wilmurth with a copy of the brief and counsel’s motion to withdraw, and 

informed Wilmurth of his right to review the record and file his own pro se brief. See Nichols v. 

State, 954 S.W.2d 83, 85–86 (Tex. App.—San Antonio 1997, no pet.); see also Bruns v. State, 924 

S.W.2d 176, 177 n.1 (Tex. App.—San Antonio 1996, no pet.). The record does not reflect 

Wilmurth filed a pro se brief.

After reviewing the record and counsel’s brief, we agree that the record contains no 

reversible error. See Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim. App. 2005).

ASSESSMENT OF ATTORNEY’S FEES

The record shows that in January of 2010, Wilmurth had a court-appointed attorney. Trial 

counsel was again appointed on October 19, 2011, in regards to the State’s Motion to Adjudicate 

Guilt. The appointment was “to continue, (unless relieved by the court earlier, after a finding of 

good cause is entered on the record), until charges are dismissed, the defendant is acquitted, all 

post-trial motions are resolved, notice of appeal is perfected, or until relieved by the court or 

replaced by other counsel.” Although the record does not reflect that the appointed attorney 

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withdrew from the case, Wilmurth had new counsel, presumably appointed, on November 29, 

2012, when the trial court adjudicated Wilmurth’s guilt. 

The record before this court does not contain an affidavit of indigency for appointment of 

counsel before the trial. See TEX. CODE CRIM. PROC. ANN. 26.05(g) (West Supp. 2013); Wiley v. 

State, No. PD-1728-12, 2013 WL 5337093, at *2 (Tex. Crim. App. Sept. 25, 2013). The record 

does, however, include the appointment of counsel to represent Wilmurth at the trial level. 

Accordingly, we conclude the record supports that Wilmurth was indigent and unable to employ 

counsel. See Wiley, 2013 WL 5337093, at *2 (explaining defendant previously found indigent is 

presumed to remain indigent); Cates v. State, 402 S.W.3d 250, 251 (Tex. Crim. App. 2013) 

(quoting TEX. CODE CRIM. PROC. ANN. art. 26.04(p) (West Supp. 2013)) (“[A] ‘defendant who is

determined by the court to be indigent is presumed to remain indigent for the remainder of the 

proceedings in the case unless a material change in the defendant’s financial circumstances 

occurs.’”).

CONCLUSION

We affirm the trial court’s judgment, see Bledsoe, 178 S.W.3d at 826–27, and grant 

appellate counsel’s motion to withdraw, see Nichols, 954 S.W.2d at 85–86; Bruns, 924 S.W.2d at 

177 n.1. However, because attorney’s fees may not be assessed against Wilmurth, we modify the 

judgment and bill of costs to delete the assessment of attorney’s fees. See Moore v. State, No. 09-

11-00622-CR, 2012 WL 4470898, at *1 (Tex. App.—Beaumont Sept. 26, 2012, no pet.) (mem. 

op., not designated for publication). 

No substitute counsel will be appointed. Should Wilmurth wish to seek further review of 

this case by the Texas Court of Criminal Appeals, he must either retain an attorney to file a petition 

for discretionary review or he must file a pro se petition for discretionary review. Any petition for 

discretionary review must be filed within thirty days from (1) the date of this opinion or (2) the 

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04-12-00834-CR

date the last timely motion for rehearing or en banc reconsideration is overruled by this court. See

TEX. R. APP. P. 68.2. Any petition for discretionary review must be filed with the clerk of the 

Texas Court of Criminal Appeals. See id. R. 68.3(a). Any petition for discretionary review must 

comply with the requirements of Rule 68.4 of the Texas Rules of Appellate Procedure. See id. R. 

68.4.

Patricia O. Alvarez, Justice

PUBLISH

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