Jefferson v. State

• Decision Date: 30 March 2023
• Docket Number: 02-21-00133-CR
• Parties: KEDARIUS KENTRELL JEFFERSON, Appellant v. THE STATE OF TEXAS
• Court: Texas Court of Appeals

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KEDARIUS KENTRELL JEFFERSON, Appellant v. THE STATE OF TEXAS

No. 02-21-00133-CR

Court of Appeals of Texas, Second District, Fort Worth

March 30, 2023

Do Not Publish Tex.R.App.P. 47.2(b)

On Appeal from the 213th District Court Tarrant County, Texas Trial Court No. 1465463D

Before Birdwell, J.; Sudderth, C.J.; and Walker, J.

MEMORANDUM OPINION

PER CURIAM.

In 2018, Appellant Kedarius Kentrell Jefferson made an open plea of guilty to engaging in organized crime with the predicate offense of aggravated robbery and received ten years of deferred-adjudication community supervision. In 2021, the trial court adjudicated him guilty of aggravated robbery (a lesser-included offense) and orally sentenced him to twelve years' confinement; in the judgment, the trial court added $3,128 in reparations, in addition to an $839 fine and $314 in court costs. The trial court gave Jefferson credit in the judgment's special findings for time served with regard to the fine and court costs, see Tex. Code Crim. Proc. Ann. arts. 42.03, 43.09, and the order to withdraw funds reflects only the $3,128 in reparations.

Jefferson's appointed appellate counsel has filed a motion to withdraw and a brief under Anders v California,^[1] representing that his "careful conscientious, and professional review of the record" shows no "legitimate grounds for direct appellate review." Counsel asks, as a separate procedural matter that we reform the judgment adjudicating Jefferson's guilt to accurately reflect that Jefferson pleaded "not true" to the allegations in the State's petition to proceed to adjudication.

Counsel's brief and motion meet the requirements of Anders by presenting a professional evaluation of the record demonstrating why there are no arguable grounds for relief. See In re Schulman, 252 S.W.3d 403, 406-12 (Tex Crim. App. 2008) (orig. proceeding). Jefferson filed a variety of pro se responses to the Anders brief, but his responses do not reveal any legitimate grounds for direct appeal; the State did not file a brief.

Once an appellant's court-appointed attorney files a motion to withdraw on the ground that an appeal is frivolous and fulfills the requirements of Anders, we must independently examine the record. See Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991). Only then may we grant counsel's motion to withdraw. See Penson v. Ohio, 488 U.S. 75, 82-83, 109 S.Ct. 346, 351 (1988).

We have carefully reviewed the record and counsel's brief. Except for minor corrections to the trial court's judgment and order to withdraw funds addressed below, we agree with counsel that the appeal is frivolous and without merit; we find nothing in the record that might arguably support the appeal. See Bledsoe v. State, 178 S.W.3d 824, 827-28 (Tex. Crim. App. 2005); see also Meza v. State, 206 S.W.3d 684, 685 n.6 (Tex. Crim. App. 2006).

As noted by counsel and as reflected in the record, Jefferson pleaded "not true" to the allegations in the State's petition to proceed to adjudication. Accordingly, we correct the trial court's judgment to reflect the record. See Bray v. State, 179 S.W.3d 725, 730 (Tex. App.-Fort Worth 2005, no pet.) (en banc); see also Van Flowers v. State, 629 S.W.3d 707, 711 (Tex. App.-Houston [1st Dist.] 2021, no pet.) (noting that consistent with its authority to modify a judgment to include or delete an affirmative finding, a court of appeals can modify judgments to correct errors with respect to court costs and fees, fines, and conflicts between the trial court's oral pronouncement and the written judgment, among other things).

Further, the trial court did not orally pronounce at sentencing the $839 fine that it included in the judgment and then gave credit for time served. With an exception not applicable here, sentences, including fines, must be orally pronounced in a defendant's presence. Ette v. State, 559 S.W.3d 511, 513, 515 (Tex. Crim. App. 2018). Because the trial court did not pronounce the $839 fine, we delete it from the judgment. See Garza v. State, No. 02-20-00155-CR, 2022 WL 488933, at *2 (Tex. App.-Fort Worth Feb. 17, 2022, no pet.) (mem. op., not designated for publication).

Additionally even though the trial court gave Jefferson credit for time served as to the $314 in court costs, see Tex. Code Crim. Proc. Ann. arts. 42.03, 43.09, we correct the bill of costs to delete the premature $25 time-payment fee. See Dulin v. State, 620 S.W.3d 129, 129, 133 (Tex. Crim. App. 2021) (holding that a defendant's appeal suspends the duty to pay court costs and therefore suspends the running of the clock for purposes of the time-payment fee). We likewise delete the $45 charge for "CVCF" from the bill of costs because it duplicates a fee already included in the $133 consolidated felony-conviction court costs in effect at the time of Jefferson's offense. See Aviles-Barroso v. State, 477 S.W.3d 363, 398 (Tex. App.-Houston [14th Dist.] 2015, pet. ref'd) (sustaining CVCF complaint because it could not be individually charged against the defendant when it was already included in then-Local Government Code Section 133.102's consolidated court costs). Jefferson's actual court costs were $244 ...