07-07-0333-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
OCTOBER 25, 2007
______________________________ALBERT V. JESSEP, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE _________________________________
FROM THE 47TH DISTRICT COURT OF POTTER COUNTY;
NO. 51,224-A, 51,225-A; HONORABLE HAL MINER, JUDGE _______________________________
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
ORDER
Appellant Albert V. Jessep filed notice of appeal on July 31, 2007, arising from his challenge to the legal validity of the trial court's orders (1) placing him on community supervision, pursuant to Code of Criminal Procedure article 11.072. Tex. Code Crim. Proc. Ann. art. 11.072. (Vernon 2003).
Article 11.072, added to the Code of Criminal Procedure in 2003, sets forth the procedures for an application for a writ of habeas corpus in a felony or misdemeanor case in which an applicant seeks relief from an order placing the applicant on community supervision. A clerk's record has been filed, and reflects that appellant filed an application for writ of habeas corpus in the trial court on April 2, 2007, and two amended applications, the second on May 2, 2007. The State filed an answer to his original application. The record, however, does not reflect a signed order entered by the trial court addressing appellant's application.
On September 24, 2007, the State filed a motion to abate this appeal, also indicating that the trial court has not yet entered an order.
The statute provides, in section 6, time periods within which a trial court is to take action on applications. The statute does not say, however, that a court's failure to enter an order by a particular date constitutes denial of the application. See Tex. Code Crim. Proc. Ann. art. 11.072, § 6, 7 (Vernon 2003). Section 8 of article 11.072 provides for appeal by the applicant "[i]f the application is denied in whole or part . . . ." Because the trial court has not denied appellant's application by written order, his notice of appeal is premature. Tex. R. App. P. 27.1(b). (2)
Section 8 of article 11.072 refers to Rule 31 of the Rules of Appellate Procedure. Accordingly, subject to the requirements of other applicable rules, the Court directs the trial court clerk to prepare, certify and file with this Court's clerk a supplemental clerk's record reflecting the trial court's disposition of appellant's application for writ of habeas corpus, within ten (10) days of the date of the trial court's order. Tex. R. App. P. 31.1.
It is so ordered.
Per Curiam
Do not publish.
1. 2. Because we view appellant's notice of appeal as premature under these
circumstances, we consider it unnecessary to abate the appeal. Accordingly, we deny the
State's motion, while acknowledging that this order has much the same effect.
UnhideWhenUsed="false" QFormat="true" Name="Subtitle"/>
NO. 07-10-00126-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
AUGUST 19, 2010
ARELL COLE, JR.,
Appellant
v.
THE STATE OF TEXAS,
Appellee
___________________________
FROM THE COUNTY COURT AT LAW OF McLENNAN COUNTY;
NO. 20093647CR1; HONORABLE MIKE FREEMAN, PRESIDING
Memorandum Opinion
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
Arell Cole, Jr. appeals his conviction for driving while intoxicated and raises two issues. He first claims that 1) the trial court erred in ordering him to pay court-appointed attorneys fees when the record contained no evidence that he was capable of doing so, and then posits that 2) it abused its discretion in admitting hearsay testimony from two paramedics regarding conversations they overheard between him and his wife. We modify the judgment and affirm it as modified.
Background
Appellant and his wife were involved in a one-car accident on July 11, 2009, at around 2:45 a.m. Emergency personnel who arrived at the scene believed that appellant was the driver of the vehicle based on statements he made, the location in which they found him, the position of the drivers seat, and other circumstantial evidence. Two paramedics also overheard separate conversations between appellant and his wife wherein they discussed who should take responsibility for being the driver. Appellant was found to have a .20 blood alcohol concentration at the time of the accident, and the only contested issue at trial was whether he had been driving the vehicle.
Issue 1 Payment of Court-Appointed Attorneys Fees
In the judgment, the trial court ordered appellant to pay all costs in this cause. Also appearing on the same document is a stamped notation after the trial judges signature stating: It is ORDERED that all court appointed attorney fees in this case shall be taxed as costs of court pursuant to Art. 26.05(f), Tx. Code of Criminal Procedure.[1] When this notation was placed on the judgment and by whom is unknown since neither a date nor initials appear next to it. Nevertheless, appellant contends that the evidence is legally insufficient to support the directive. We sustain the issue.
If a court determines that a defendant has the financial resources to offset, in whole or part, the costs of legal services provided him, the trial court shall order him to pay for those services to the extent that he can. Tex. Code Crim. Proc. Ann. art. 26.05(g) (Vernon Supp. 2009); see Sauceda v. State, 309 S.W.3d 767, 770 (Tex. App. Amarillo 2010, no pet.) (addressing the matter). Implicit therein is the need for 1) the trial court to find that appellant is capable of paying for some or all of that expense and 2) evidence supporting that determination.
Here, the trial court did not specify a particular amount of fees that should be repaid. Nor did it find that appellant had sufficient financial resources to pay any of the expenses at issue. Instead, it twice (at trial and on appeal) appointed legal counsel to represent appellant. It is elemental that before such appointments could have been made, appellant had to have been deemed indigent, that is, without sufficient economic or financial resources to pay for his own attorney. Trammell v. State, 287 S.W.3d 336, 343 (Tex. App.Fort Worth 2009, no pet.) (explaining when a defendant is entitled to appointed counsel). More importantly, appellant being found indigent for purposes of gaining appointed counsel hardly establishes that he had sufficient financial resources to offset the expenses incurred in providing him an attorney. The contrary seems rather logical, as the State seemed to recognize in its brief. So too is it true that once a defendant is found indigent, he is presumed to remain so for the remainder of the proceedings, unless there is some proof that his financial resources materially changed. Mayer v. State, 309 S.W.3d 552, 557 (Tex. Crim. App. 2010); Sauceda v. State, 309 S.W.3d at 770. And, we have no such showing before us.
As for the States request to have the cause abated and remanded, it is rather settled that when the evidence is held to be legally insufficient to support a finding, the cause cannot be simply abated and remanded for additional factual development. Mayer v. State, 309 S.W.3d at 557. Thus, the State does not get another opportunity to bite at the attorneys fee apple, especially when we are cited to nothing of record suggesting that it was precluded from taking a first bite.
Issue 2 Hearsay Testimony
Next, appellant complains that the trial court erred in admitting the testimony of two paramedics who testified about overhearing appellant and his wife discuss who should admit to driving the vehicle at the time of the accident. Appellant objected to the testimony on the grounds of hearsay. We overrule the issue.
Hearsay is a statement, other than one made by the declarant while testifying at trial, offered to prove the truth of the matter asserted. Tex. R. Evid. 801(d). The statements at bar consisted of both paramedics testifying that they overheard appellant state that he was driving the vehicle after his wife suggested that all should be told that she was driving. While appellants utterance could be considered hearsay, it can also be reasonably interpreted as a statement against interest. As such, it can be admitted as an exception to the hearsay rule. See id. 803(24) (stating that an exception to the hearsay rule is one which at the time of its making was so far contrary to the declarants interest or so far tended to subject him to criminal liability that a reasonable person would not have made the statement unless believing it to be true).
As for reiteration of the wifes portion of the conversation, it could be reasonably interpreted as providing the context for appellants admission. As such, it was not being offered to prove the substance of what was being asserted, i.e. that the wife drove the car. See Stallings v. State, 476 S.W.2d 679, 681 (Tex. Crim. App. 1972) (stating that testimony from the complaining witness as to a statement made by the defendants wife immediately prior to the crime to the effect that the defendant was wanting to cut her throat was not hearsay because it was made in the defendants presence and not offered to prove that appellant had actually assaulted his wife). Therefore, we cannot say the trial court abused its discretion in admitting the testimony at issue.
Accordingly, we modify the judgment to delete that portion requiring appellant to pay attorneys fees and affirm the remainder.
Brian Quinn
Chief Justice
Do not publish.
[1]The record does not indicate what portion of the court costs were represented by attorneys fees.