FRAZIER v. STATE

No. 06-17-00035-CR.

ROBERT WILLIAM FRAZIER, Appellant, v. THE STATE OF TEXAS, Appellee.

Court of Appeals of Texas, Sixth District, Texarkana.

Decided: August 10, 2017.


Attorney(s) appearing for the Case

James P. Finstrom , Robert William Frazier, for Robert William Frazier, Appellant.

Billy W. Byrd , for State of Texas.

Before Morriss, C.J., Moseley and Burgess, JJ.


DO NOT PUBLISH

MEMORANDUM OPINION

Memorandum Opinion by Justice RALPH K. BURGESS.

While intoxicated, Robert William Frazier slammed his pickup truck into a car occupied by four young women. After the car flipped over and landed upside down in a ditch, two young women were killed, and the other two sustained serious bodily injury. Frazier entered an open plea of guilty to and was convicted of four offenses, including two counts of intoxication manslaughter and two counts of intoxication assault. The trial court also made a finding that each offense was committed with a deadly weapon. Following a punishment hearing, the trial court sentenced Frazier to twenty years' imprisonment for each conviction of intoxication manslaughter and ten years' imprisonment for each conviction of intoxication assault. Frazier appeals.

Frazier's attorney has filed a brief which states that he has reviewed the record and found no genuinely arguable issues that could be raised on appeal. The brief sets out the procedural history of the case and summarizes the evidence elicited during the course of the proceeding. Meeting the requirements of Anders v. California, counsel has provided a professional evaluation of the record demonstrating why there are no arguable grounds to be advanced. Anders v. California, 386 U.S. 738, 743-44 (1967); In re Schulman, 252 S.W.3d 403, 406 (Tex. Crim. App. 2008) (orig. proceeding); Stafford v. State, 813 S.W.2d 503, 509-10 (Tex. Crim. App. 1991); High v. State, 573 S.W.2d 807, 812-13 (Tex. Crim. App. [Panel Op.] 1978). Counsel also filed a motion with this Court seeking to withdraw as counsel in this appeal.

On April 25, 2017, counsel hand delivered to Frazier copies of his brief, the appellate record, and his motion to withdraw. Frazier was informed of his right to review the record and file a pro se response. By letter dated April 26, 2017, this Court informed Frazier that any pro se response was due on or before May 26, 2017. On June 28, 2017, this Court further informed Frazier that the case would be set for submission on the briefs on July 19, 2017. Frazier did not file a pro se response.

In the Anders context, however, appellate courts "have the authority to reform judgments and affirm as modified in cases where there is non reversible error." Ferguson v. State, 435 S.W.3d 291, 294 (Tex. App.-Waco 2014, pet. struck) (comprehensively discussing appellate cases that have modified judgments in Anders cases). The judgment of conviction for Count I of the indictment—intoxication manslaughter—orders Frazier to pay $569.00 in courts costs. The bill of costs in the clerk's record reflects that Frazier was charged a $190.00 fee for summoning witnesses. Under Article 102.011 of the Texas Code of Criminal Procedure, "A defendant convicted of a felony . . . shall pay the following fees for services performed in the case by a peace officer:. . . (3) $5 for summoning a witness." TEX. CODE CRIM. PROC. ANN. art. 102.011 (West Supp. 2016); see TEX. GOV'T CODE ANN. § 102.021 (West Supp. 2016) (providing that fees under Article 102.011 are included as court costs). While the bill of costs reflects that thirty-eight witnesses were summoned, the appellate record reflects otherwise. Although the trial court issued thirty-seven subpoenas, the record demonstrates that a peace officer only summoned twelve witnesses. The sheriff's return on the subpoenas issued for the remaining witnesses contains no information suggesting that a peace officer ever attempted to summon the remaining witnesses. Therefore, we must reduce the amount of the Article 102.011 fee from $190.00 to $60.00. We modify the trial court's judgment memorializing Frazier's conviction on Count I of the indictment for intoxication manslaughter to reflect that the total amount of court costs assessed is $439.00.

We also note that all four of the trial court's judgments of conviction mistakenly state that Frazier's sentences resulted from the "Terms of [a] Plea Bargain." Because Frazier entered an open plea of guilty and elected to have a bench trial on punishment, no plea bargain was in place. Accordingly, we further modify all four of the trial court's judgments by deleting the language mistakenly stating that Frazier's sentences were the result of a plea bargain.

We have reviewed the entire appellate record and have independently determined that no reversible error exists. Accordingly, we modify (1) the trial court's judgment of conviction on Count I of the indictment—intoxication manslaughter—to reflect the total amount of court costs assessed against Frazier as $439.00 rather than $569.00 and (2) all four of the trial court's judgments of conviction by deleting the language that Frazier's sentences were the result of a plea bargain.1

As modified, we affirm the trial court's judgments.

FootNotes


1. Since we agree that this case presents no reversible error, we also, in accordance with Anders, grant counsel's request to withdraw from further representation of appellant in this case. See Anders, 386 U.S. at 744. No substitute counsel will be appointed. Should appellant desire 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 file a pro se petition for discretionary review. Any petition for discretionary review (1) must be filed within thirty days from either the date of this opinion or the date on which the last timely motion for rehearing was overruled by this Court, see TEX. R. APP. P. 68.2, (2) must be filed with the clerk of the Texas Court of Criminal Appeals, see TEX. R. APP. P. 68.3, and (3) should comply with the requirements of Rule 68.4 of the Texas Rules of Appellate Procedure, see TEX. R. APP. P. 68.4.

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