Donald Frank McMath v. the State of Texas

In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-23-00071-CR
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DONALD FRANK MCMATH, Appellant

V.

THE STATE OF TEXAS, Appellee

__________________________________________________________________

On Appeal from the 128th District Court
Orange County, Texas
Trial Cause No. A220316-R
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MEMORANDUM OPINION

Donald Frank McMath appeals his conviction for aggravated sexual

assault, a first-degree felony. 1 After filing the notice of appeal, the trial

court appointed an attorney to represent McMath in his appeal. The

1See Tex. Penal Code Ann. § 22.021(a)(2)(B).

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attorney discharged his responsibilities to McMath by filing an Anders

brief. 2

In the brief, McMath’s attorney represents there are no arguable

reversible errors to be addressed in McMath’s appeal. 3 The brief the

attorney filed contains a professional evaluation of the record. In the

brief, McMath’s attorney explains why, under the record in McMath’s

case, no arguable issues exist to reverse the trial court’s judgment.4

McMath’s attorney also stated that he sent McMath a copy of the brief

and the record. When the brief was filed, the Clerk of the Ninth Court of

Appeals notified McMath, by letter, that he could file a pro se brief or

response with the Court on or before November 7, 2023. McMath,

however, failed to respond.

When an attorney files an Anders brief, we are required to

independently examine the record and determine whether the attorney

assigned to represent the defendant has a non-frivolous argument that

would support the appeal. 5 After reviewing the clerk’s record, the

2See Anders v. California, 386 U.S. 738, 744 (1967).
3See id.; High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978).
4Id.
5Penson v. Ohio, 488 U.S. 75, 80 (1988) (citing Anders, 386 U.S. at

744).
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reporter’s record, and the attorney’s brief, we agree there are no arguable

grounds to support the appeal. 6 Thus, it follows the appeal is frivolous.7

For that reason, we need not require the trial court to appoint another

attorney to re-brief the appeal. 8

However, appellate courts are authorized to reform judgments and

affirm a modified judgment in Anders cases when the error involves a

non-reversible error. 9 The record shows that the trial court assessed

reimbursement fees that included attorney’s fees against an indigent

defendant. Without a change in the defendant’s indigent status, a trial

court cannot impose an award of attorney’s fees in the judgment against

6See Bledsoe v. State, 178 S.W.3d 824, 827-28 (Tex. Crim. App.
2005) (“Due to the nature of Anders briefs, by indicating in the opinion
that it considered the issues raised in the briefs and reviewed the record
for reversible error but found none, the court of appeals met the
requirements of Texas Rule of Appellate Procedure 47.1.”).
7Id. at 826.
8See Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991).

McMath may challenge our decision in the case by filing a petition for
discretionary review. See Tex. R. App. P. 68.
9See Getts v. State, 155 S.W.3d 153, 155 (Tex. Crim. App. 2005)

(affirming appellate court’s reformation of trial court’s judgment in
Anders case); Mitchell v. State, 653 S.W.3d 295, 297 (Tex. App.—
Texarkana 2022, no pet.) (collecting cases that have modified judgments
in Anders cases).
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a defendant who remains indigent when the judgment is pronounced.10

Article 26.05(g) provides that a judge shall order a defendant to pay a

reimbursement fee to offset in part or whole the cost of legal services

provided to the defendant “[i]f the judge determines that a defendant has

financial resources” to do so. 11 We have reviewed the record, and it does

not demonstrate that the trial court found a material change in McMath’s

financial circumstances. Therefore, we conclude the record does not

support the trial court’s ruling that resulted in requiring that he

reimburse the County $2,565.00 in attorney’s fees.

Accordingly, we modify the trial court’s judgment by substituting

the sum of $508.80 below the line in the judgment for “Reimbursement

Fees” to replace the trial court’s award of $3,073.80. 12

10See Tex. Code Crim. Proc. Ann. art. 26.04(p) (stating an indigent

defendant is presumed to remain indigent unless a material change in a
defendant’s circumstances occurs), 26.05(g); Wiley v. State, 410 S.W.3d
313, 315, 317 (Tex. Crim. App. 2013); Roberts v. State, 327 S.W.3d 880,
883-84 (Tex. App.—Beaumont 2010, no pet.); Newell v. State, No. 09-22-
00415-CR, 2023 WL 4612034 (Tex. App.—Beaumont July 19, 2023) (no
pet.).
11See Tex. Code Crim. Proc. Ann. art. 26.05(g).
12See Tex. R. App. P. 43.2(c).

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As modified, the trial court’s judgment is affirmed.

AFFIRMED AS MODIFIED.

HOLLIS HORTON
Justice

Submitted on January 10, 2024
Opinion Delivered February 21, 2024
Do Not Publish

Before Golemon, C.J., Horton and Johnson, JJ.

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