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Flournoy v. State

Court of Appeals of Texas, Twelfth District, Tyler

May 22, 2019

ADRIAN FLOURNOY, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE

          Appeal from the 7th District Court of Smith County, Texas (Tr.Ct.No. 007-0020-18)

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

          MEMORANDUM OPINION

          PER CURIAM.

         Adrian Flournoy appeals his conviction for possession of a controlled substance. Appellant's counsel filed a brief in compliance 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). We modify and affirm as modified.

         Background

         Appellant was charged by indictment with possession of one gram or more but less than four grams of cocaine enhanced by a prior felony conviction. He pleaded "guilty," and the trial court assessed his punishment at imprisonment for eight years. This appeal followed.

         Analysis Pursuant to Anders v. California Appellant's counsel filed a brief in compliance with Anders v. California and Gainous v. State. Appellant's counsel relates that he reviewed the record and found no reversible error or jurisdictional defect. In compliance with High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. [Panel Op.] 1978), counsel's brief contains a professional evaluation of the record demonstrating why there are no arguable grounds to be advanced.[1]

         We considered counsel's brief and conducted our own independent review of the record. Id. at 811. We found no reversible error.

         Court Costs

         In reviewing the record, we found an error in the amount of court costs in the judgment. We have the authority to reform a judgment in an Anders appeal and to affirm the judgment as reformed. See Tex. R. App. 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 upon 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 this case, the final judgment imposes $328.00 in court costs. A bill of costs lists the name and amount of each cost and includes a $34.00 DNA testing fee. The code of criminal procedure provides that a person must pay a court cost of $34.00 for DNA testing when he is placed on community supervision. Tex. Code Crim. Proc. Ann. art. 102.020(a)(3) (West 2018). Here, because Appellant was not placed on community supervision, we find no basis in the record for the $34.00 DNA testing fee.

         We have the authority to correct a trial 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 526, 529 (Tex. App.-Dallas 1991, pet. ref'd). Because we have the necessary data and information to correct the amount of court costs in this case, we conclude that the ...


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