Jacob Thomas Vandecarr v. The State of Texas — Memorandum Opinion by Chief Justice Worthen
Jacob Thomas Vandecarr v. The State of Texas — Memorandum Opinion by Chief Justice Worthen
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NO. 12-26-00141-CR IN THE COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT TYLER, TEXAS JACOB THOMAS VANDECARR, APPELLANT V. THE STATE OF TEXAS, APPELLEE § § § APPEAL FROM THE 7TH JUDICIAL DISTRICT COURT SMITH COUNTY, TEXAS MEMORANDUM OPINION Jacob Thomas Vandecarr appeals his conviction for assault family violence by impeding breath or circulation following the revocation of his deferred adjudication community supervision. 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). In his brief, counsel also raises an issue asserting nonreversible error.1 We affirm. B ACKGROUND Appellant was charged by indictment with assault family violence by impeding breath or circulation.2 Appellant pleaded “guilty” pursuant to a plea-bargain agreement. The trial court deferred its finding of guilt and ordered a presentence investigation report. Following a sentencing hearing, the trial court found Appellant “guilty” and sentenced him to ten years confinement probated for ten years. 1 When counsel files an Anders brief that also asserts nonreversible error, we conduct an independent review of the record for reversible error involving the defendant’s conviction and sentence and then treat the briefed, nonreversible error as a merits issue. See Cummins v. State, 646 S.W.3d 605, 612 (Tex. App.—Waco 2022, pet. ref’d). 2 See T EX. PENAL CODE A NN. § 22.01(b)(2)(B).
2 Subsequently, the State filed a motion to revoke Appellant’s community supervision alleging he had violated certain terms and conditions. Appellant pleaded “true” to the jurisdictional allegation and “not true” to each of the remaining allegations. At the hearing, a representative from the Smith County Community Supervision and Corrections Department testified that Appellant failed to comply with several requests for random urinalysis testing. In addition, Appellant repeatedly failed to complete his required two hours of community service or pay his required monthly supervision and monthly pretrial supervision fees. At the conclusion of the hearing, the trial court found that Appellant violated the conditions of his community supervision, found him “guilty” of assault family violence by impeding breath or circulation, and assessed punishment at ten years of confinement. This appeal followed. ANALYSIS PURSUANT TO A NDERS V. CALIFORNIA Appellant’s counsel filed a brief in compliance with Anders v. California and Gainous v. State. Appellant’s counsel states that he diligently reviewed the appellate record and is of the opinion that the record reflects no reversible error. He further relates that he is well acquainted with the facts of the case. In compliance with Anders, Gainous, and High v. State, 573 S.W.2d 807 (Tex. Crim. App. [Panel Op.] 1978), Appellant’s brief presents a chronological summation of the procedural history of the case and further states that counsel is unable to raise any arguable issues of reversible error on appeal.3 We likewise reviewed the record for reversible error and found none. COURT COSTS In his sole issue, Appellant argues that the trial court improperly assessed costs for a county support fee of $0.60, a state judicial support fee of $5.40, a records management and preservation fee of $2.50, and attorney fees of $73.50, and asks this Court to modify the trial court’s judgment and bill of cost. The State asserts that Appellant forfeited the issue by failing to file a notice of appeal within thirty days of the trial court’s deferred adjudication order that placed Appellant on community supervision. We agree with the State. 3 In compliance with Kelly v. State, Appellant’s counsel provided Appellant with a copy of the briefs, notified Appellant of his motion to withdraw as counsel, informed Appellant of his right to file a pro se response, and took concrete measures to facilitate Appellant’s review of the appellate record. See Kelly v. State, 436 S.W.3d 313, 319 (Tex. Crim. App. 2014). Appellant was given time to file his own brief. The time for filing such a brief has expired, and no pro se brief has been filed.
3 When an appellant fails to file a notice of appeal within thirty days of being placed on community supervision, an appeal raising issues regarding the propriety of court costs after adjudication of guilt is not timely with respect to the court costs assessed in the deferred adjudication order. Perez v. State, 424 S.W.3d 81, 85 (Tex. Crim. App. 2014) (concluding that notice of appeal filed more than thirty days after being placed on community supervision was untimely with respect to court costs assessed in deferred adjudication order); see also Wiley v. State, 410 S.W.3d 313, 318 (Tex. Crim. App. 2013) (holding that defendant whose community supervision was revoked forfeited challenge to court-appointed attorney’s fees as court costs by failing to directly appeal from order originally imposing community supervision); Manuel v. State, 994 S.W.2d 658, 661-62 (Tex. Crim. App. 1999) (holding that defendant placed on deferred adjudication community supervision may raise issues relating to original plea proceeding only in appeal filed when deferred adjudication is first imposed). Appellant agreed, as a condition of community supervision, to pay all court costs. The trial court’s order deferring adjudication of Appellant’s guilt and placing him on community supervision reflects that Appellant owed court costs of $551.50. The trial court’s judgment adjudicating guilt lists $0.00 in costs. The record contains a certified bill of costs, which reflects that court costs initially totaling $340 with a balance of $0.4 We conclude that Appellant could and should have made his complaint regarding the assessment of a county support fee, a state judicial support fee, a records management and preservation fee, and attorney fees in a timely appeal of the trial court’s deferred adjudication order. See Perez, 424 S.W.3d at 86. We further conclude that Appellant’s failure to do so constituted a procedural default. See id. (citing Wiley, 410 S.W.3d at 320). We overrule issue one. CONCLUSION As required by Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991), Appellant’s counsel moved for leave to withdraw. See also In re Schulman, 252 S.W.3d 403, 407 (Tex. Crim. App. 2008) (orig. proceeding). We carried the motion for consideration with the merits. Having done so and finding no reversible error and having overruled Appellant’s issue that 4 Although not completely set out in the brief, it appears that Appellant seeks a refund of costs already paid. The time for complaining about the court costs was when deferred adjudication was first imposed. See Manuel, 994 S.W.2d at 661-62.
4 asserted nonreversible error, we grant counsel’s motion for leave to withdraw and affirm the trial court’s judgment. See TEX. R. APP. P. 43.2(a). Appellant’s counsel has a duty to, within five days of the date of this opinion, send a copy of the opinion and judgment to Appellant and advise him of his right to file a petition for discretionary review. See TEX. R. APP. P. 48.4; In re Schulman, 252 S.W.3d at 411 n.35. Should Appellant wish to seek review of this case by the Texas Court of Criminal Appeals, he must either retain an attorney to file a petition for discretionary review on his behalf or file a pro se petition for discretionary review. See In re Schulman, 252 S.W.3d at 408 n.22. Any petition for discretionary review must be filed within thirty days from the date of either this opinion, or if a motion for rehearing is filed, the date that the last timely motion for rehearing is overruled by this Court. See TEX. R. APP. P. 68.2. Any petition for discretionary review must be filed with the Texas Court of Criminal Appeals. See T EX. R. APP. P. 68.3(a). Any petition for discretionary review should comply with the requirements of Texas Rule of Appellate Procedure 68.4. See TEX. R. APP. P. 68.4; In re Schulman, 252 S.W.3d at 408 n.22. JAMES T. WORTHEN Chief Justice Opinion delivered October 21, 2026. Panel consisted of Worthen, C.J., Hoyle, J., and Davis, J. (DO NOT PUBLISH)
COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT OF TEXAS JUDGMENT OCTOBER 21, 2026 NO. 12-26-00141-CR JACOB THOMAS VANDECARR, Appellant V. THE STATE OF TEXAS, Appellee Appeal from the 7th District Court of Smith County, Texas (Tr.Ct.No. 007-1162-22) THIS CAUSE came to be heard on the appellate record and briefs filed herein, and the same being considered, it is the opinion of the court that there was no error in the trial court’s judgment. It is therefore ORDERED, ADJUDGED, and DECREED that the judgment of the court below be in all things affirmed, and that this decision be certified to the court below for observance. James T. Worthen, Chief Justice. Panel consisted of Worthen, C.J., Hoyle, J., and Davis, J.
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