Gerardo Alonzo Lopez v. the State of Texas
11-19-00027-CR
| Tex. App. | Jul 8, 2021Background
- Appellant Gerardo Alonzo Lopez pleaded open guilty to felony driving while intoxicated; after a punishment hearing the trial court sentenced him to 5 years' confinement and a $500 fine.
- Court-appointed appellate counsel moved to withdraw and filed an Anders-style brief concluding the appeal is frivolous and without merit, complying with Anders/Kelly/Schulman requirements and providing Lopez the record and notice of rights.
- Lopez did not file a response to counsel’s Anders brief.
- This court conducted an independent review of the record and agreed there were no arguable grounds for appeal, concluding counsel could withdraw.
- The court identified a nonreversible error: the judgment and bill of costs included a prematurely assessed $25 Time Payment Fee.
- Citing Dulin and Cates, the court modified the judgment and bill of costs to delete the $25 fee without prejudice to assessment later per Dulin, granted counsel’s motion to withdraw, and affirmed as modified.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether counsel properly sought withdrawal under Anders and whether any arguable appellate grounds exist | Counsel argued the appeal is frivolous; Lopez filed no response | State did not identify arguable grounds; court independently reviewed record | Court found no arguable grounds, granted counsel's motion to withdraw, affirmed conviction as modified |
| Whether the $25 Time Payment Fee was properly assessed as a court cost | Lopez (and court on review) argued the fee was prematurely assessed and should be deleted | State implicitly required the fee be reviewed under controlling precedent | Court struck the $25 Time Payment Fee from judgment/bill of costs without prejudice to later assessment per Dulin |
Key Cases Cited
- Anders v. California, 386 U.S. 738 (established counsel's duty when appealing a frivolous case)
- Kelly v. State, 436 S.W.3d 313 (Tex. Crim. App.) (procedural guidance for Anders-type briefs)
- In re Schulman, 252 S.W.3d 403 (Tex. Crim. App.) (Anders procedures for appellate counsel and court review)
- Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App.) (standards for counsel withdrawal in appeals)
- Dulin v. State, 620 S.W.3d 129 (Tex. Crim. App.) (Time Payment Fee prematurely assessed; may be assessed later under conditions)
- Cates v. State, 402 S.W.3d 250 (Tex. Crim. App.) (court may modify judgment to remove improperly assessed fees)