Delfino Ortega Jr. v. the State of Texas
11-19-00081-CR
| Tex. App. | Jul 8, 2021Background
- Delfino Ortega Jr. was convicted by a jury of felony driving while intoxicated; an enhancement was found true and he received 20 years’ confinement.
- Court-appointed appellate counsel filed an Anders brief and a motion to withdraw, stating there were no arguable grounds for appeal and provided Ortega with the record and notice of rights.
- Ortega did not file a response to counsel’s Anders brief.
- The Court of Appeals independently reviewed the record under Anders/Schulman and agreed there were no arguable appellate issues.
- The trial court’s judgment mistakenly ordered $60 in “restitution” to the Texas DPS (a DPS lab fee) and assessed a $25 Time Payment Fee as a court cost.
- The appellate court modified the judgment to delete the $60 restitution and the $25 Time Payment Fee, granted counsel’s motion to withdraw, and affirmed the judgment as modified.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether counsel may withdraw under Anders (is the appeal frivolous) | State: counsel complied with Anders; record shows no reversible error | Ortega: no response filed; no arguable issues asserted | Withdrawal granted; court independently reviewed record and found appeal frivolous/no reversible error |
| Whether trial court could order restitution of DPS lab fee when defendant is sentenced to imprisonment | State: restitution order valid (implicit) | Ortega: restitution to DPS not authorized when sentenced to confinement | Reversed as to restitution; $60 restitution to Texas DPS deleted from judgment |
| Whether Time Payment Fee ($25) was properly assessed as a court cost at sentencing | State: fee proper (implicit) | Ortega: fee prematurely assessed | Fee struck from judgment; may be assessed later if conditions in Dulin are met |
Key Cases Cited
- Anders v. California, 386 U.S. 738 (1967) (sets standard for counsel withdrawal on frivolous appeal)
- Kelly v. State, 436 S.W.3d 313 (Tex. Crim. App. 2014) (procedural guidance for Anders-type appeals)
- In re Schulman, 252 S.W.3d 403 (Tex. Crim. App. 2008) (requiring independent appellate review when counsel seeks to withdraw)
- Burt v. State, 445 S.W.3d 752 (Tex. Crim. App. 2014) (delete restitution orders lacking statutory authority)
- Hanna v. State, 426 S.W.3d 87 (Tex. Crim. App. 2014) (limits restitution to victims of the offense)
- Dulin v. State, 620 S.W.3d 129 (Tex. Crim. App. 2021) (time-payment fees may be prematurely assessed and subject to later imposition under conditions)
- Cates v. State, 402 S.W.3d 250 (Tex. Crim. App. 2013) (modify judgments to remove improperly assessed fees)