## NO S

. 12

- 19

- 00361

- CR 12

- 19

- 00362

- CR 12

- 19

- 00363

- CR 12

- 1 9

- 00364

- CR 12

- 19

- 00 365

- CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS

TERRY JAMES LENNOX , APPELLANT

V.

THE STATE OF TEXAS , APPELL EE §

§

§ APPEAL S FROM THE 7 TH

JUDICIAL DISTRICT COURT

SMITH COUNTY, TEXAS

MEMORANDUM OPINION PER CURIA M Terry James Lennox appeals his convictions for evading arrest with a motor vehicle, felony driving while intoxicated (DWI) , unauthorized use of a vehicle, and two counts of aggravated assault on a public servant . Appellant’s counsel filed a brief in com pliance with
Anders v. California , 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), and Gainous v.
State , 436 S .W .2d 137 (Tex. Crim. App. 1969). Appellant filed a pro se response. We modify
and affirm as modified

. B ACKGROUND Appellant was charged by indictment with evading arrest with a motor vehicle, 1 DWI with two previous DWI conviction s , 2 unauthorized use of a vehicle, enhanced by two pr evious

1 A third

- degree felony as charged. See T EX

. P ENAL C ODE A NN

. § 38.04( b )(2)(A) (West 2016 ).

2 A third

- degree felony as charged. See id

. § § 49.04( a) (West Supp. 2020 ) , 49.09( b)(2) (West Supp. 2020 ).2 state jail felony convictions, 3 and two counts of aggravated assault on a public servant

. 4 He pleaded “gui lty” to each offense and true to each enhancement paragraph . The trial court ordered a presentence investigation report, and the matter proceed ed to a bench trial on punishment. At the punishment trial, the only witness called was Appellant’s mother, Lado nna Fox.
She testified generally about Appellant’s long struggle with mental illness. Fox additiona lly
testified that on the date of the offens es, she thought Appellant w as under the influence of drugs.
Howe ver, because she later found “his bottle that [sh e] thought he drank” in his room, she came to believe instead that he “was having an attack.” Ultimately, the trial court assessed Appellant’s punishment at imprisonment for eight years in the evading, DWI, and unauthorized use cases, and forty

- five years in e ach aggravated
assault case. This appeal followed.

A NALYSIS P URSUANT TO A NDERS V
. C ALIFORNIA Appellant’s counsel filed a brief in complia nce with Anders v. California and Gainous v.
State . Appellant’s counsel relates tha t s he has reviewed the record and found no reversible error or jurisdictional defects. In compliance with H igh v. State , 573 S.W.2d 807, 81 2 (Tex. Crim. App. [ Panel Op.] 197 8), Appellant’s brief contains a professional evaluation of the recor d demonstrating why ther e are no arguable gr ounds to be advanced. 5 Appellant contends in his pro se response that (1) Texas Rule of Evidence 609 ’s limit on using evidence of a witness’s conviction after ten years have passed was violated by the
inclusion of one of Appellant’s prior convictions in a n enhancement paragraph , (2) the prosecutor improperly impugned his character during closing argument s by arguing that Appellant’s mental illne ss did not cause him to commit the offenses, (3) the evidence in one o f his aggravated ass ault cases is insuffici ent because the police officer jumped in front of Appellant’s vehicle, and (4) his plea was involuntary because of his mental illness.

3 A third

- degree felony as cha rged. See id. § § 12.425( a) (West 2019 ), 31.07 (West 2016 ).

4 Each a first

- degree felony as charged. See id. § § 22.01( a )(1 ), (2) ( Wes t Supp. 2020) , 22.02( a)(2), ( b)(2)(B) (West 2019 )

.

5 In compliance with Kelly v. State , Appellant’s counsel provided Appel lant with a copy of the brief, notified Appellant of h er motion to withdraw as counsel, informed Appellant of his right to file a pro se response, and took concr ete measures to facilitate Appellant’s review of the appellate record. 436 S.W.3d 313, 319 (Tex

. Crim. App. 2014).3 When f aced with an Anders brief and a pro se response by an appellant, an appellate court can either (1) determine that the appeal is wholly frivolous and issue an opinion explaining that it has reviewed the record and finds no reversible error or (2 ) determine that arguable

groun ds for appeal exist and remand the cause to the trial court so that new counsel may be appoint ed to brief the issues. Bledsoe v. State , 178 S.W.3d 824, 82 6

- 27 (Tex. Crim. App. 2005).
W e conducted a n independent review of the record in th is case and found no reversible error

. See
i d. We conclude that the appeal is wholly frivolous

. See i d.

C OURT C OSTS
In reviewing the record, we found an error in the amount of court costs in one of the judgments. We have the authority to reform a judgm ent in a n Anders appeal and affirm the judgment as reformed. See T EX

. R. A PP

. P. 43 .2( b ) ; Bray v. State , 179 S. W

. 3d 725, 726 (Tex. App

. — Fort Worth 2005, no pet.) (en banc)

. The imposition of court costs on a criminal defendant is a “nonpunitive recoupment of the costs of judicial resources expended in connection with the trial of the case.” Johnson v.
State , 423 S. W. 3d 385, 390 (Tex. Crim. App . 2014). In reviewing the assessment of court costs,
we review the record to determine whether there is a basis for the costs. Id.
In Appellant’s DWI case, the final judgment imposes $ 488.00 in court costs. A bill of

costs in th e record lists the description and amount of each cost and includes a $ 34.00 “DNA Testing Fee.” At the time of Appellant’s offense and convicti on, former Section 102.020 of t he code of criminal procedure provide d that a person must pay a court cost of $34. 00 for DNA testing when he wa s placed on community supervision. Act effective Sep . 1, 20 01 , 77th Leg. , ch. 1490, § 6 , repealed by Act effective Jan. 1, 2020 86th Leg. , ch. 1352, § 1.19(7)

. Because Appellant was not placed on community supervision in this c ase, there is no basis in the record for the $34.00 DNA testing fee. See id. ; Johnson , 423 S.W.3d at 390.
We have the authority to correct a tr ial court’s judgment to make the record speak the truth when we have the necessary data and information

. Asberry v. State , 813 S.W.2d 5 2 6, 529 (Tex. App

. — Dallas 1991, pet. r ef’d). Because we have the necessary data and information to

correc t the amount of court costs in this case, we conclude that the judgment in trial court Cause
No. 007

- 1075

- 19 should be modified t o reflect that the amount of court costs is $454.00. See id. ; T EX

. R. A PP

. P. 43.2( b)

.4 C ONCLUSION As required by Anders and Stafford v. St a te , 813 S.W.2d 503, 511 ( T ex

. Crim. App. 1991), Appellant’s counsel has moved for leave to withdraw. See also In re Schulman , 252
S.W.3d 403 , 407 (Tex. Crim. App. 2008) (orig. proceeding). We carried the motion for
consideration with th e merits. Having done s o, we agree with Appellant’s counsel that the appeal is wholly frivolous. Accordingly, we grant counsel’s motion for leave to withdra w

. We affirm the trial court’s judgments in Cause Nos. 007

- 107 2

- 19 , 007

- 1073

- 19, 007

- 1074

- 19 , and 007

- 1076

- 19. We modify th e trial court’s judgment in Cause No. 007

- 1075

- 19 to reflect that the
amount of court costs is $454.00 and affir m the judgment as modified

. Appellant’s counsel has a duty to , w ithin five days of the date of this opinion, send a copy of the opinion and jud gment to Appellant and advise him of his right to file a petition fo r discretionary review. See T EX

. R. A PP

. P. 48.4; In re Schulman , 252 S.W.3 d at 411 n .35. Should Appellant wish to seek review of this case by the Texas Court of Criminal Appeals, he must either retain an attorney to file a petition for discretionary review on his behalf or he must file a pro se pet ition for discretionary review. Any petition f or discretionary review must be filed within thirty days f ro m either the date of this opinion or t he da t e that the last timely motion for rehearing was overruled by this court. See T EX

. R. A PP

. P. 68.2( a)

. Any petition for discretionary review must be filed with the Texas Court of Criminal Appeals. See T EX

. R. A PP

. P. 68. 3 ( a). Any petition for discreti onary review should comply with the requirements of Rule 68.4 of the Texas Rules of Appellate Procedure. See In re Schulman , 252 S.W.3d at 408 n.22. Opinion delivered April 21 , 2021. Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

( DO NOT PUBLISH )

## COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGM E NT

APRIL 21 , 2021

NO. 12

- 19

- 00361

- CR

TERRY JAMES LENNOX , Appellant V. THE STATE OF TEXAS , Appellee

Appeal from the 7th Distr ict Court
of Smith County, Texas (Tr.Ct.No. 007

- 1072

- 19 ) THIS CAUSE came to be heard on the appellate record and bri efs filed herein, and the same being considered, it is the opinion of this court that there was no error in the judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment of
the cou rt below be in all things affirmed , and that this decision be certif ied to the court below
for observance. By per curiam opinion

. Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J.

## COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGME NT

APRIL 21 , 2021

NO. 12

- 19

- 0036 2

- CR

TERRY JAMES LENNOX , Ap pellant V. THE STATE OF TEXAS , Appellee

Appeal from the 7th District Court
of Smith County, Texas (Tr.Ct.No. 007

- 107 3

- 19 )

THIS CAUSE came to be heard on the appellate record and bri efs filed herein, and the same being considered, it is the opinion of thi s court that there was no error in the judgment. It is therefore ORDERED, ADJUDGED and DECREED that the judgment of
the cou rt b elow be in all things affirmed , and that this decision be certified to the court below
for observance. By per curiam opinion

. Pa nel consisted of Worthen, C.J., Hoyle, J. and Neeley, J.

## COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGM E NT

APRIL 21 , 2021

NO. 12

- 19

- 0036 3

- CR

TERRY JAMES LENNOX , Appellant V. THE STATE OF TEXAS , Appellee

Appeal from the 7th Dis trict Court
of Smith County, Texas (Tr.Ct.No. 007

- 107 4

- 19 ) THIS CAUSE came to be heard on the appellate record and bri efs fil ed herein, and the same being considered, it is the opinion of this court that there was no error in the judgment.
It is therefor e ORDERED, ADJUDGED and DECREED that the judgment of
the cou rt below be in all things affirmed , and that this decision be cert ified to the court below
for observance. By per curiam opinion

. Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J.

## COU RT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGME NT

APRIL 21 , 2021

NO. 12

- 19

- 0036 4

- CR

TERRY JAMES LENNOX , Appellant V. THE STATE OF TEXAS , Appellee

Appeal from the 7th District Court
of Smith County, Texas (Tr.Ct.No. 007

- 107 5

- 19 )

THI S CAUSE came to be heard on the appellate record and the brief s filed herein, and the same being considered, because it is t he opinion of this court that the judgment of
the court below should be modified and as modified, affirmed.
I t is therefore ORDERED , ADJUDGED and DECREED that the judgment
of the court below be modified to reflect that the amount of court costs is $454.00 ; in all other respects the judgment of the trial court is affirmed ; and that this decision be certified to the court
below for obse rvance

. By per curiam opinion

. Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J.

## COURT OF APPEALS

TWELFTH CO URT OF APPEALS DISTRICT OF TEXAS

JUD GME NT

APRIL 21 , 2021

NO. 12

- 19

- 0036 5

- CR

TERRY JAMES LENNOX , Appellant V. THE STATE OF TEXAS , Appellee

Appeal from the 7th District Court
of Smith County, Texas (Tr.Ct.No. 007

- 107 6

- 19 )

THIS CAUSE came to be heard on the appellate record and bri efs fil ed herein, and the same being considered, it is the opinion of this court that there was no err or in the judgment. It is therefore ORDERED, ADJUDGED and DECREED that the judgment of
the cou rt below be in all things a ffirmed , and that this decision be cert ified to the court below
for observance. By per curiam opinion

. Panel consisted of Worthen, C.J ., Hoyle, J. and Neeley, J.