Jerry Lance Durdin v. the State of Texas

Court of Appeals
Tenth Appellate District of Texas

10-23-00341-CR, 10-23-00342-CR

Jerry Lance Durdin,
Appellant

v.

The State of Texas,
Appellee

On appeal from the
278th District Court of Madison County, Texas
Judge Hal R. Ridley, presiding
Trial Court Cause Nos. 21-13775, 21-13777

JUSTICE SMITH delivered the opinion of the Court.

MEMORANDUM OPINION

The underlying cases were tried together. Durdin entered open pleas of

guilty to the offenses of possession of a controlled substance in penalty group

one in an amount of one gram or more but less than four grams (cause number

21-13775) and delivery of a controlled substance in penalty group one in an

amount of one gram or more but less than four grams (cause number 21-

13777). See TEX. HEALTH & SAFETY CODE ANN. §§ 481.112(c), 481.115(c). Each
offense was enhanced by one prior final felony conviction. See TEX. PENAL

CODE ANN. § 12.42. After the sentencing hearing, the trial court pronounced

Durdin’s punishment at ten years in prison in cause number 21-13775 and

twenty years in prison in cause number 21-13777, to run concurrently. These

appeals followed. We affirm the judgments of the trial court as modified.

Pertinent Procedural Background

Durdin’s appointed counsel has filed a consolidated motion to withdraw

and an Allison brief in support of the motion addressing both cases, asserting

that he has diligently reviewed the appellate record and that, in his opinion,

the appeals are frivolous. See Allison v. State, 609 S.W.3d 624, 628-29 (Tex.

App.—Waco 2020, order). In his Allison brief, Durdin’s appointed counsel did

not raise any potential reversible error, but he did present nonreversible error

in each judgment.

In his motion to withdraw, Durdin’s appointed counsel indicated that he

provided Durdin with a copy of the motion to withdraw and the Allison brief,

that he provided Durdin with a pro forma motion to access the appellate record,

and that he instructed Durdin on how to continue these appeals pro se and his

right to file a petition for discretionary review. Durdin has not filed a pro se

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response to appointed counsel’s Allison brief. The State also has not filed a

response to the Allison brief.1

Counsel’s brief evidences a professional evaluation of the record for error

and compliance with other duties of appointed counsel. We conclude that

counsel has performed the duties required of appointed counsel. See Anders v.

California, 386 U.S. 738, 744, 87 S. Ct. 1396, 1400, 18 L. Ed. 2d 493 (1967); See

also Kelly v. State, 436 S.W.3d 313, 319-20 (Tex. Crim. App. 2014); In re

Schulman, 252 S.W.3d 403, 407 (Tex. Crim. App. 2008).

In reviewing an Anders appeal, we must, “after a full examination of all

the proceedings … decide whether the case is wholly frivolous.” Anders, 386

U.S. at 744, 87 S. Ct. at 1400; See Penson v. Ohio, 488 U.S. 75, 82-83, 109 S.

Ct. 346, 351, 102 L. Ed. 2d 300 (1988); accord Stafford v. State, 813 S.W.2d

503, 509-11 (Tex. Crim. App. 1991). An appeal is “wholly frivolous” or “without

merit” when it lacks any basis in law or fact.” McCoy v. Court of Appeals, 486

U.S. 429, 439 n. 10, 108 S. Ct. 1895, 100 L. Ed. 2d 440 (1988). After a review

of the entire record in these appeals, we have determined that the appeals are

1 Durdin’s appointed counsel originally filed briefs on the merits raising the same issues that are raised

in the new Allison brief (as well as one issue of alleged nonreversible error in trial court cause number
21-13777 that was omitted from the Allison brief). The State filed a responsive brief to Durdin’s
original briefs. Because none of the issues raised would result in the reversal of Durdin’s convictions
or punishments, we struck appointed counsel’s original briefs with instructions to either file briefs
raising one or more issues of reversible error, or file motions to withdraw accompanied by Allison
briefs. Though given the opportunity to file a new response to the Allison brief, the State has not done
so.

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wholly frivolous, meaning that there is no reversible error in the record. See

Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005); see also

Cummins v. State, 646 S.W.3d 605, 618-19 (Tex. App.—Waco 2022, pet. ref’d).

Counsel’s motions to withdraw from representation are granted.

Nonreversible Error Detected

Despite finding no reversible error, appointed counsel has presented

nonreversible errors that we recognize as Category 2 nonreversible errors that

are unpreserved but not subject to procedural default. See Cummins, 646

S.W.3d at 613-15; London v. State, 490 S.W.3d 503, 507 (Tex. Crim. App. 2016);

Johnson v. State, 423 S.W.3d 385, 390-91 (Tex. Crim. App. 2014). Specifically,

Durdin’s appointed counsel argues that the trial court committed

nonreversible error by ordering reimbursement of court-appointed attorney’s

fees and lab fees in each case.

ATTORNEY’S FEES

Durdin argues that the evidence is insufficient to support the trial court’s

finding that he had the ability to repay his court-appointed attorney’s fees in

each case. See TEX. CODE CRIM. PROC. ANN. art. 26.05(g). We agree.

A trial court has the authority to order a defendant to reimburse all or

part of his court-appointed attorney’s fees if the trial court determines that the

defendant has the financial resources to enable him to offset the costs of the

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legal services provided. See id. When a trial court makes such a finding, the

record must reflect some factual basis to support the determination that the

defendant is capable of paying all or some of his attorney’s fees at the time of

judgment. See Mayer v. State, 309 S.W.3d 552, 555-56 (Tex. Crim. App. 2010);

Briceno v. State, 675 S.W.3d 87, 98 (Tex. App.—Waco 2023, no pet.). For

purposes of assessing attorney’s fees, once a defendant is found to be indigent,

he is presumed to remain indigent for the remainder of the proceedings in the

case unless a material change in the defendant’s circumstances occurs. See

TEX. CODE CRIM. PROC. ANN. art. 26.04(p); Mayer, 309 S.W.3d at 557. The

evidence will not support an imposition of attorney’s fees if there is no

indication in the record that an indigent defendant’s financial status has in

fact changed. Wiley v. State, 410 S.W.3d 313, 317 (Tex. Crim. App. 2013) (citing

Mayer, 309 S.W.3d at 557). When there is insufficient evidence to support the

assessment of court-appointed attorney's fees, the proper remedy is to reform

the judgment by deleting the attorney's fees. Briceno, 675 S.W.3d at 98.

Here, on April 13, 2022, the trial court determined that Durdin was

indigent and appointed trial counsel in each case. Durdin was thus presumed

to remain indigent absent proof of a material change in his financial

circumstances. After Durdin entered open pleas of guilty in each case, the trial

court conducted a sentencing hearing on September 28, 2023. During the

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sentencing hearing, Durdin testified that he was receiving unemployment

benefits before he was arrested and that he had been in custody for fifteen

months.

The trial court’s judgments, citing to article 26.05(g), include a finding

that “the Defendant has financial resources that enable Defendant to offset in

part or in whole the cost of the legal services provided to Defendant.” See TEX.

CODE CRIM. PROC. ANN. art. 26.05(g). The judgments also include assessments

of attorney’s fees in the amount of $100 in cause number 21-13775 and $1,000

in cause number 21-13777. However, the record contains orders appointing

appellate counsel for Durdin in each case that were signed on the same date as

the judgments. These appointment orders specifically find Durdin to be

indigent under “Code of Criminal Procedure, Chapter 26.”

A trial court’s determination under article 26.05(g) “requires a present

determination of financial resources” made at the time of the judgment.2 Cates

v. State, 402 S.W.3d 250, 252 (Tex. Crim. App. 2013). Notably, Durdin was

expressly found to be indigent on the same date that the trial court assessed

2 We note that the clerk’s records in each case contain the plea paperwork for Durdin’s open guilty

pleas. Both sets of paperwork are dated June 20, 2023 and include a statement in which Durdin
acknowledges “that I have read and understand all fines and costs assessed in the judgment before
the Court. Understanding theses [sic] fines and costs assessed I afform [sic] that I have the ability
and means to pay the fines and costs assessed in the judgment in the manner and means contained
therein.” Even assuming that Durdin’s acknowledgement in his plea paperwork that he had “the
ability and means to pay the fines and costs assessed” constitutes some evidence of his ability to repay
attorney’s fees, this stipulation was made more than three months before the attorney’s fees were
assessed in the judgments.

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the attorney’s fees in each judgment. We find that there is no factual basis in

the record supporting the trial court’s determination that Durdin was capable

of reimbursing his court-appointed attorney’s fees at the time of judgment.

Accordingly, we modify the judgments in each case to delete the

assessment of court-appointed attorney’s fees.

DPS LAB FEE

Durdin asserts that the judgment in each case should be modified to

delete his requirement to pay a $180 lab fee to the Texas Department of Public

Safety (“DPS”). We agree.

The judgments in each case require Durdin to pay “$180.00 restitution

to DPS for testing of drugs.” We recently held that a DPS lab fee is properly

classified as a court cost, not as restitution. Shircliff v. State, 654 S.W.3d 788,

792 (Tex. App.—Waco 2022, no pet.). We reasoned that the purpose of the lab

fee, as indicated in the judgments in each of these cases, is to reimburse DPS

for laboratory testing and not to restore any victim of the criminal offense to

the “status quo ante” position he was in before the offense. Id. A trial court

may order a defendant to pay lab fees as a condition of community supervision,

but a trial court has no authority to order reimbursement of DPS lab fees when

the defendant is sentenced to prison. Id. Here, Durdin was sentenced to prison

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in each case. The $180 DPS lab fee was not validly assessed. Accordingly, we

modify the judgments in each case to delete the $180 DPS lab fee.

Conclusion

We modify the trial court’s judgment in cause number 21-13775 to delete

the assessment of $100 in attorney’s fees and the $180 DPS lab fee, and we

affirm the judgment as modified. We modify the trial court’s judgment in cause

number 21-13777 to delete the assessment of $1,000 in attorney’s fees and the

$180 DPS lab fee, and we affirm the judgment as modified. We grant counsel’s

motions to withdraw from representation in each case.

STEVE SMITH
Justice

OPINION DELIVERED and FILED: July 17, 2025
Before Chief Justice Johnson,
Justice Smith, and
Justice Harris
Affirmed as modified; motions granted
Do not publish
[CR25]

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