## In the Court of Appeals Second Appellate District of Texas at Fort Worth

___________________________ No. 02

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- 00509

- CR No. 02

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- 00510

- CR

______________ _____________

On App eal from the 355th District Court Hood County, Texas Trial Court No s . C R13687, CR14293 Before Sudderth, C.J.; Gabriel and Womack, JJ. Memorandum Opinion by Justice Gabriel 

### T RAVI S 

### G UERIN 

### , Appellant
V 

### . T HE 

### S TATE OF 

### T EXAS2 MEMORANDUM OPINION A grand jury indicted Appellant Travis Guer in on one count of p ossession of l ess than one gram of the controlled substance methampheta mine and one count of child endanger ment, both state

- jail felonies, and he was later indicted in a separate

ca se for bail jum ping , a third

- degree felony
. 1 See Tex. Penal Code Ann. § § 2 2.041 (c) , (c

- 1 ), (f), (h) (child endangerment) , 38.10(a), (f ) (ba il jum ping); Tex. Health & Safety Code Ann. §§ 481.102(6), .115(a)

– (b) ( methamphetamine possession )
. After a jury found Guerin guilty of all three off enses, h e pl eaded tr ue to the e nhance ment paragraph alleged in the indictment charging ba i l jumping , and the ju ry assessed his punishment at two years ’ co nfinement in state jail for the chil d

- endangerment and drug

- possession offenses and eighteen years ’ co nfinement for bail j ump ing. Se e Tex. Penal Code Ann. §§ 12 .33, .35, .42(a)
. The trial court sentenced Guerin accordingly , and he timely appealed
. In each case , Guerin ’ s court

- appointed appellate counsel has filed a motion to withdraw as counsel and a brief in support of that motion. Counsel ’ s brief and motion meet the requirements of Anders v. California by pres enting a professional eval uation of the record demonstrating why there are no arguable grounds for relief. 386 U.S. 738, 87 S. Ct. 1396 (1967); see In re Schulman , 252 S.W.3d 403, 406

– 12 (Tex. Crim. App. 2008) (orig. proceeding) (analyzing the effect of A nders ). Although Guerin

1 Guerin was indicted on two counts of bail jum ping, but the jury was charged o nly on the first co u nt. The trial court dismissed the second count after the trial.3 was given an opportunity to file a pro se response to the And ers brief in each ca se , he has not done so, nor has the State filed a responsive brief
. After an appellant ’ s court

- appointed counsel files a motion to withdraw on the gro und that the ap peal is frivolous and fulfills the requirements of Anders , this court

m ust independently ex amine the record to see if any arguable ground may be raised on his behalf
. See Stafford v. State , 813 S.W.2d 503, 511 (Tex. Crim. App. 1991) . We al so consider the briefs and any pro se response. See Schulman , 252 S.W.3d at 408

– 09
. Only after we conduc t our own examination to determine whether counsel has
correct ly assessed the case m ay we grant his motion to withdraw. See Penson v. Ohio , 488 U.S. 75, 82

– 83, 109 S. Ct. 346, 351 (1988). We have carefully reviewed counsel ’ s brief and the record in each c ase . In that review, we discovered that some costs imposed are statutorily barred or otherwise not supported by the record s. First , the trial court a ssessed duplicate court costs against Guerin. Article 102
. 073 (a) of the code of criminal pr ocedure provides tha t “[i]n a single criminal action in which a defendant is convicted of two or more offenses or of multiple counts of the same offense, the court may asse ss each court cost or fee only once against” him. Tex. Code Crim. Proc. Ann. art. 1 02.073(a)
. This cou rt and others have interpreted “ a single criminal action ” to include a trial on multiple offen ses regardless of whether they were committed in a single criminal ep isode
. Santoro v. Stat e , No s . 02

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- 00039

- CR, 02

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- 00040

- CR, 2018 WL 3153564, at *1 (Tex . App.

— Fort Worth4 Ju ne 28, 2018, no pet.) (mem. op., not designated for publication) (collecting cases). When a trial court erroneously assesses c ourt cos ts for multiple convictions tried in a single proceeding, we retain the court costs for the offense o f the highest cate go ry. Tex. Code Crim. Proc. Ann. art. 102.07 3( b ) ; Santoro , 2018 WL 3153564, at * 2
. We therefore retain the court costs for Gue r in ’ s bai l jumping offense. Costs erroneously duplicated inclu de : the clerk ’ s fee, the consolidated court co sts fee, the courtho use security fee, the criminal e

- filing conviction fee, the crim inal technology fee, the indigent defense services fee, the ju d ici al su pport fee, the jury reimbursement fee, the jury trial fee, the records man agement and preservation fe e, the summoning jur y fee, and the time payment fee. Those fees total $294
. Thus, in trial court cause number CR13687 ( appellate c ause n umber 02

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- CR ) , w e modify the trial court ’ s judgment and incorporated order to wit hdraw funds and the bill of costs to delete $294 in dup licated court costs . Second , capias warrant fees were erro neously charged in both of Guerin ’ s cases . The statute govern i ng fees for services of peace officers provides that a defendant convicted of a felony shall pay $50 for the executing or processing of an issued arrest warrant or capi as but only $5 for a warrantless arre st , and that the “ fee
. . . shall be assessed on c o n viction , regardless of whether the defendant was al so arrested at the same time for anoth er offense , and shall be assessed for each arrest made of a defendant arising out of the offense for which [he] has been convicted
. ” Tex. Code Crim. Proc. Ann. art. 102
. 011 ( a)(1)

– (2) , (e)
.5 The record i n trial court cause number CR13687 ( appellat e c ause n umber 02

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- 00509

- CR ) indicates that Guerin was first arrested on the drug

- posses sion and child

- endangerment charges a fter his home was searched pursuant to a search

w arrant. There is no indication in the record that the search warrant was also a cap ias

or arrest wa rrant , and Guerin included “ capias [es] ” in his written designat ion of documents to be included in the appellate clerk ’ s record. B ecau se no warrant or capi a s author ized Guerin ’ s initial arrest, the two $50 fees assessed for that arrest are not supported by the record. The fees assessed should have been two $5 warrantless arrest fees
. Id. art. 102
. 011 (a)(1)
. After Guerin jumped ba i l, arrest warrants w ere i s sued for the drug

- possession and child

- endangerment ch arges , a nd he was arrested pursuant to those active warrants
. I n trial court cause number CR13687 ( appellate

c ause n umber 02

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- 00509

- CR ) , w e therefore m odify the trial court ’ s judgment and incor porat e d order to withdraw funds and the bill of costs to delete $ 90 of the $200 capias warrant fee assessed agai nst Guerin
. See, e.g. , Gonzalez v. State , No. 02

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- 00373

- CR, 2019 WL 983699, at *2 (Tex. App.

— Fort Worth Feb. 28, 2019, n o pet.) (per curiam) (mem. op., not designated for publication) (holding same in similar Hood County case). I n trial court cause number CR1 4293 (appellate caus e number 02

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- CR) , no arrest warrant was issued. Although a return ed precept to serv e the indictment appears i n the record, the bill of costs includes a corresponding $35 serving writ fee. See Tex. Code Crim. Proc. Ann. arts. 25.01 (providing that “[i]n6 every case of fe lony, when the accused is in custody, or as soon as he may be arrested, th e clerk of the court where an indic tment has been presented shall immediately make a certified copy of the same, and deliver s uch copy to the sheriff, together with a writ directed t o such sheriff, commanding him forthwith to deliver such certified copy to the accused”), 1 02.0 11 (a) ( 4) (auth orizing $35 fee “ for serving a writ ” no t sp ecified in that article); cf. Love v. State , No. 0 3

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- 00462

- CR, 2016 WL 1183676, at *2 (Tex. App.

— Austi n Mar. 22, 2016, no pet.) (mem. op., not designated for publication) ( noti n g these statutes and hold i ng trial court did not err by imposing $25 sheriff ’ s fee when precept was in the re cord ). W e therefore modify the trial court ’ s judgment and incorporated order to withdraw funds and the bill of costs i n trial court cause number C R1 4293 (appellate ca use n u mber 02

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- 005 10

- CR) to delete $ 45 of the $ 50 capias warrant fee assessed agai nst Guerin
. See, e.g. , Gonzalez , 2019 WL 983699, a t *2
. Except for these improperly imposed fees, we agree with counsel that th e s e appeal s are wholly f rivolous and without meri t ; we fin d nothing in the record s before us that arguably might support these appeal s . See Bledsoe v. State , 178 S.W.3d 824, 827

– 28 (T ex. Crim. App. 2005); see also Meza v. State , 206 S.W.3d 684, 685 n.6 (Tex. Crim. A pp. 2006). H a ving modified the tr ial c o urt ’ s ju dgment and incorporated order to withdraw funds and the bill of costs in trial court cause number CR13687 ( appellate c ause
n umber 02

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- 00509

- CR ) to delete cumulative costs of $ 3 84

— $ 294 for the duplicated costs and fees a n d $90 for the impr op erly c harged w arrant fee s — leaving total costs at7 $ 190 in that case , we grant counsel ’ s motion to withdraw in that ca se and affirm as mod ified the trial court ’ s judgment and the order to withdraw funds incorpor ated therein. See Bray v. State , 179 S.W.3d 72 5, 72 6 (Tex. A pp.
— Fort Worth 2005, no pet.) (holding that an appellate court has authority to modify a judgment in an Anders appeal). Ha ving modified the trial court ’ s judgment and incorporated order to withdraw funds and the bill of c osts in trial court cause number C R 14293 ( appellate

c ause n umber 02

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- 005 10

- CR ) to delete $45 of the improperly charged warrant fee, leaving total costs a t $334 in that case , we likewise grant counsel ’ s motion to withdraw in that ca se and affirm as modif i ed the trial court ’ s judg m ent and incorpor ated order
to withdraw funds
. See Bray , 179 S.W.3d at 726
.

/s/ Lee Gabriel Lee Gabriel J ustice Do Not Publish Tex . R. App. P . 47.2(b) Delivered: August 26, 2019