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Date: 10-11-2018

Case Style:

Jose Ortiz v. The State of Texas

Case Number: 04-17-00842-CR

Judge: Karen Angelini

Court: Fourth Court of Appeals San Antonio, Texas

Plaintiff's Attorney: Nicholas LaHood
Laura E. Durbin

Defendant's Attorney: Patrick Barry Montgomery

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These are appeals from two judgments revoking Jose Ortiz’s community supervision. At a
consolidated hearing, Ortiz pled “true” to all three grounds alleged in the State’s motion to revoke
in 2017CR4478, and “true” to two of the three grounds alleged in the State’s motion to revoke in
2015CR7889W. In each case, the trial court revoked Ortiz’s community supervision, sentenced
Ortiz to five years imprisonment, ordered the sentences to run concurrently, and imposed a
$1500.00 fine.
04-17-00842-CR & 04-17-00843-CR


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Ortiz’s court-appointed appellate counsel has filed briefs and motions to withdraw in
accordance with Anders v. California, 386 U.S. 738 (1967). Counsel’s briefs state he has diligently
examined the records in each case and in his professional opinion these appeals are frivolous and
without merit. Counsel’s briefs, which include citations to the records and to relevant legal
authorities, satisfy the requirements of Anders. See id.; High v. State, 573 S.W.2d 807 (Tex. Crim.
App. 1978). Counsel further states that he provided Ortiz with copies of the briefs, the motions to
withdraw, and the appellate records, and informed Ortiz of his right to file his own briefs. See
Bruns v. State, 924 S.W.2d 176, 177 n.1 (Tex. App.—San Antonio 1996, no pet.). Ortiz did not
file pro se briefs.
After reviewing the record in each case, we agree with counsel’s conclusion that these
appeals are frivolous and without merit. Therefore, we affirm the trial court’s judgments.
Furthermore, we grant counsel’s motions to withdraw. See Nichols v. State, 954 S.W.2d 83, 85-86
(Tex. App.—San Antonio 1997, no pet.); Bruns, 924 S.W.2d at 177 n.1.
Although the trial court’s judgments do not order Ortiz to pay court-appointed attorney’s
fees, the records contain certified bills of costs that list the amount for Ortiz’s court-appointed
attorneys as “TBD,” or to be determined. “[A]ttorney’s fees as set forth in a certified bill of costs
are effective whether or not incorporated by reference in the written judgment.” Armstrong v. State,
340 S.W.3d 759, 767 (Tex. Crim. App. 2011). The records show that the trial court appointed
counsel to represent Ortiz pursuant to article 26.04 of the Texas Code of Criminal Procedure. TEX.
CODE CRIM. PROC. ANN. art. 26.04 (West Supp. 2017). Therefore, the trial court found Ortiz to be
indigent. See id. Nothing in the records shows a material change in Ortiz’s financial circumstances.
Absent a showing of a material change in Ortiz’s financial circumstances, it would be error to
assess court-appointed attorney’s fees against Ortiz. See Benavidez v. State, 423 S.W.3d 520, 522
(Tex. App.—San Antonio 2013, no pet.). Because the “TBD” reference indicates such fees could
04-17-00842-CR & 04-17-00843-CR


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be assessed once an amount is determined, we order the trial court clerk to prepare and file in each
case a corrected bill of costs showing that no court-appointed attorney’s fees are assessed against
Ortiz. See Moody v. State, No. 04-16-000017-CR, 2017 WL 2124512, at *1 (Tex. App.—San
Antonio May 17, 2017, no pet.) (not designated for publication) (ordering corrected bill of costs
when appellant was indigent and bill of costs listed amount of court-appointed attorney’s fees as
“TBD”).

Outcome: No substitute counsel will be appointed. Should Ortiz wish to seek further review of this case by the Texas Court of Criminal Appeals, he must either retain an attorney to file a petition for discretionary review or file a pro se petition for discretionary review. Any petition for discretionary
review must be filed within thirty days from the later of (1) the date of this opinion; or (2) the date 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 in the Texas Court of Criminal Appeals. See TEX. R. APP. P. 68.3. Any petition for discretionary review should comply with the requirements of Rule
68.4 of the Texas Rules of Appellate Procedure. See TEX. R. APP. P. 68.4.

Plaintiff's Experts:

Defendant's Experts:

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