ACCEPTED
12-14-00163-cr
TWELFTH COURT OF APPEALS
TYLER, TEXAS
1/5/2015 6:18:18 PM
CATHY LUSK
CLERK
ORAL ARGUMENT REQUESTED
NO. 12-14-00163-CR FILED IN
12th COURT OF APPEALS
TYLER, TEXAS
IN THE COURT OF APPEALS 1/5/2015 6:18:18 PM
12TH JUDICIAL DISTRICT CATHY S. LUSK
Clerk
TYLER, TEXAS
KATHIE SPEARS,
APPELLANT
VS.
THE STATE OF TEXAS,
APPELLEE
ON APPEAL IN CAUSE NUMBER 007-1236-05
FROM THE 7th JUDICIAL DISTRICT COURT
OF SMITH COUNTY, TEXAS
HONORABLE KERRY RUSSELL, JUDGE PRESIDING
APPELLANT’S BRIEF
JAMES W. HUGGLER, JR.
100 E. FERGUSON, SUITE 805
TYLER, TEXAS 75702
903-593-2400
STATE BAR NUMBER 00795437
ATTORNEY FOR APPELLANT
IDENTITY OF PARTIES AND COUNSEL
APPELLANT:
Kathie Spears
APPELLANT’S TRIAL COUNSEL
Rhett Darby
PO Box 192
Athens, Texas 75751
O.W. Loyd
1507 Frost
Gilmer, Texas 75644
903-843-3469
John Jarvis (At revocation)
326 S. Fannin
Tyler, Texas 75702
903-592-6576
APPELLANT’S APPELLATE COUNSEL
Kurt Noell (2007 appeal)
231 S. College
Tyler, Texas 75702
903-597-9069
James Huggler
100 E. Ferguson, Suite 805
Tyler, Texas 75702
903-593-2400
903-593-3830 (fax)
ii
APPELLEE
The State of Texas
APPELLEE’S TRIAL COUNSEL
M. Brent Ratekin
Daphne Session
Jason Parrish
Steve Comte
Whitney Tharpe
Chris Gatewood
Bryan Jiral
Smith County Criminal District Attorney’s Office
100 N. Broadway, 4th Floor
Tyler, Texas 75702
903-590-1720
903-590-1719 (fax)
APPELLEE’S APPELLATE COUNSEL
Michael West
Smith County Criminal District Attorney’s Office
100 N. Broadway, 4th Floor
Tyler, Texas 75702
903-590-1720
903-590-1719 (fax)
iii
TABLE OF CONTENTS
PAGE
IDENTITY OF PARTIES AND COUNSEL. . . . . . . . . . . . . . . . . . . . . . ii
TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv
TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi
STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ISSUES PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
ISSUE ONE: The trial court erred in sentencing Ms. Spears when
the trial court had no jurisdiction over the case because the
mandate had not yet issued from the Court of Appeals.
ISSUE TWO: The trial court erred in imposing attorney fees
following a finding that Ms. Spears was indigent and was
appointed counsel.
ISSUE THREE: The District Clerk erred in including attorney
fees following a finding that Ms. Spears was indigent and
appointed counsel.
STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
ISSUE ONE, RESTATED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
ISSUE TWO, RESTATED.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
ISSUE THREE, RESTATED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
iv
A. Law on Attorney Fees. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
B. Standard of Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
C. Application to These Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
D. Remedy and Relief Requested.. . . . . . . . . . . . . . . . . . . . . . . . . 15
PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
CERTIFICATE OF SERVICE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
v
TABLE OF AUTHORITIES
STATUTES
TEX. CODE CRIM. PROC. ANN. art. 26.04(p) (West 2013).. . . . . . . . . . . . . 9
TEX. CODE CRIM. PROC. ANN. art. 26.05(g) (West 2013). . . . . . . . . . . . . . 9
TEX. CODE CRIM. PROC. ANN. art. 103.001 (West 2013). . . . . . . . . . . . . 10
TEX. GOV’T CODE ANN. §§ 102.001-.142 (West 2013). . . . . . . . . . . . . . . 10
TEX. GOV’T CODE ANN. § 102.021 (West 2013). . . . . . . . . . . . . . . . . . . . 10
TEX. GOV’T CODE ANN. § 103.006 (West 2013). . . . . . . . . . . . . . . . . . . . 11
TEX. PENAL CODE ANN. §31.03(a) and (e)(4)(A) (West 2001). . . . . . . . . . 3
TEX. PENAL CODE ANN. § 33.09 (West 2001).. . . . . . . . . . . . . . . . . . . . 1, 3
CASES
Arbuckle v. State, 105 S.W.2d 219 (Tex. Crim. App. 1937). . . . . . . . . . . 7
Armstrong v. State, 340 S.W.3d 759 (Tex. Crim. App. 2011). . . . . 10, 11
Carter v. State, 510 S.W.2d 323 (Tex. Crim. App. 1974). . . . . . . . . . . . . 7
Coats v. State, 788 S.W.2d 674 (Tex. App. – Corpus Christi
1990, no pet). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Deifik v. State, 58 S.W.3d 794 (Tex. App. – Fort Worth 2001). . . . . . . . 8
Gollihar v. State, 46 S.W.3d 243 (Tex. Crim. App. 2001). . . . . . . . . . . . 7
Heartfield v. Thaler, 403 S.W.3d 234 (Tex. Crim. App. 2013). . . . . . . . . 7
Howell v. State, 175 S.W.3d 786, 792 (Tex. Crim. App. 2005).. . . . . . . 12
Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781,
61 L. Ed. 2d 560 (1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Johnson v. State, 423 S.W.3d 385, 390 (Tex. Crim. App. 2014). . . . . . 11
Johnson v. State, 405 S.W.3d 350, 354 (Tex. App. – Tyler
2013, no pet). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 12
Mayer v. State, 309 S.W.3d 552, 557 (Tex. Crim. App. 2010). . . . . 10, 12
vi
Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1991). . . 12
Morris v. State, 658 S.W.2d 310 (Tex. App. – Houston [1st Dist.]
1983, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Nix v. State, 65 S.W.3d 664 (Tex. Crim. App. 2001). . . . . . . . . . . . . . . . 8
Owen v. State, 352 S.W.3d 542, 5148 (Tex. App. – Amarillo
2011, no pet). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 11
Spears v. State, No. 12-07-00168-CR, 2008 Tex. App. LEXIS 98
(Tex. App. – Tyler 2008, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . 2, 3, 6
Weir v. State, 278 S.W.3d 364, 367 (Tex. Crim. App. 2009). . . . . . . . . 10
Whetstone v. State, 786 S.W.2d 361 (Tex. Crim. App. 1990). . . . . . . . . 7
Williams v. State, 332 S.W.3d 694, 699 (Tex. App. – Amarillo
2011, pet. denied). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 12
RULES
TEX. R. APP. PROC. 9.4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
TEX. R. APP. PROC. 38. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
vii
NO. 12-14-00163-CR
KATHIE SPEARS § IN THE COURT OF APPEALS
APPELLANT §
§
VS. § 12TH JUDICIAL DISTRICT
§
THE STATE OF TEXAS, §
APPELLEE § TYLER, TEXAS
APPELLANT’S BRIEF
TO THE HONORABLE COURT OF APPEALS AND THE JUSTICES
THEREOF:
Comes now Kathie Spears, (“Appellant”), by and through his
attorney of record, James Huggler, and pursuant to the provisions of TEX.
R. APP. PROC. 38, et seq., respectfully submits this brief on appeal.
STATEMENT OF THE CASE
Appellant was indicted in Cause Number 007-1236-05 for the state
jail felony offense of theft. I CR 11; see TEX. PENAL CODE ANN. §33.09
1
References to the Clerk’s Record are designated “CR” with a roman numeral preceding
“CR” indicating the correct volume and an arabic numeral following “CR” specifying the correct
1
(West 2001). Following a bench trial, the case was appealed to this court
and affirmed. I CR 88-90, 99. Spears v. State, No. 12-07-00168-CR, 2008
Tex. App. LEXIS 98 (Tex. App. – Tyler, 2008 no pet.). The State filed a
motion to revoke her probation, Ms. Spears entered true pleas to some
allegations, and not true to others. I CR 134-137, 144; I RR 132. The trial
court only found the allegations to which Ms. Spears plead too to be true.
I RR 46. The court imposed a two year sentence with the outstanding
$9,173 in restitution and outstanding court costs. I RR 46.
Notice of appeal was timely filed in on June 23, 2014. I CR 157.
This Brief is timely filed on or before January 5, 2015 following proper
extension granted by this Court.
page in the record.
2
References to the Reporter’s Record are designated “RR” with a roman numeral
preceding “RR” indicating the correct volume, and an arabic numeral following “RR” specifying
the correct page.
2
ISSUES PRESENTED
ISSUE ONE: THE TRIAL COURT ERRED IN SENTENCING MS.
SPEARS WHEN THE TRIAL COURT HAD NO JURISDICTION OVER
THE CASE BECAUSE THE MANDATE HAD NOT YET ISSUED FROM
THE COURT OF APPEALS.
ISSUE TWO: THE TRIAL COURT ERRED IN IMPOSING ATTORNEY
FEES FOLLOWING A FINDING THAT MS. SPEARS WAS INDIGENT
AND WAS APPOINTED COUNSEL.
ISSUE THREE: THE DISTRICT CLERK ERRED IN INCLUDING
ATTORNEY FEES IN THE BILL OF COSTS FOLLOWING A FINDING
THAT MS. SPEARS WAS INDIGENT AND WAS APPOINTED
COUNSEL.
STATEMENT OF THE FACTS
Kathie Spears was indicted for the state jail felony offense of theft.
I CR 1. TEX. PENAL CODE ANN. §§31.03(a) and (e)(4)(A) and 31.09(West
2001). Following a bench trial, the case was appealed to this court and
the judgment was affirmed. CR 88-90; Spears v. State, No. 12-07-00168-
CR, 2008 Tex. App. LEXIS 98 (Tex. App. – Tyler, 2008, no pet.). On both
April 2, 2007 and March 5, 2008, Ms. Spears was sentenced to two years
probated for five years and ordered payment of $15,373 in restitution. I
CR 71-72, 93-94. The court imposed a variety of conditions of supervision.
3
I CR 73-76, 95-98.
The State filed two different motions to revoke the probation. I
CR123-128, 134-137. The first motion was dismissed and the probation
was modified. I CR 132, 131. The second motion to revoke included the
following allegations: (1) that Ms. Spears was placed on probation; (2) that
she failed to pay the supervision fee to probation; (3) that she failed to
send in mail-in reports for three months; (4) she failed to obtain a GED
and failed to provide proof of obtaining a GED to probation; (5) she failed
to pay an outstanding balance of restitution of $11,330.00 to the probation
department; and (6) that she was delinquent in paying court costs
included fees for appointed counsel. I CR 134-137.
Ms. Spears entered a plea of true to identity, the paragraphs
regarding the mail-in reports and the GED. I CR 144; I RR 13. The trial
court only found that she violated her probation on the two paragraphs to
which she entered pleas of true. I RR 46. Following evidence and the
argument of counsel, the court revoked Ms. Spears’ probation and
sentenced her to two years confinement. I CR 146-147; I RR 46. Further
discussion of relevant facts is included below. Timely notice of appeal was
4
filed. I CR 157. This appeal follows.
SUMMARY OF ARGUMENT
The first issue for the court to consider is whether the trial court
even had jurisdiction top place Ms. Spears on probation. Following a
bench trial, the trial court found Ms. Spears guilty and placed her on
probation. This Court affirmed the judgment. The trial court formally re-
sentenced Ms. Spears on March 5, 2008. I CR 93-94. However, the
mandate in the case was not issued until March 7, 2008. Until the
mandate was issued, the trial court had no jurisdiction to take any action,
and any action taken on orders entered prior to the issuance of the
mandate were void.
The error for this Court to consider in Issues Two and Three involves
the improper assessment of court costs. The trial court improperly ordered
reimbursement of attorney fees after Mr. Spears was found to be indigent
and was appointed counsel. The attorney fees were not included in the
judgment placing her on probation, but were assessed and partially
collected. While the final judgment from the trial court does not include
5
the fee, the bill of costs prepared by the clerk’s office does contain the
improper assessment of fees and will be the record used by the Smith
County collections department following his release from custody.
ARGUMENT
ISSUE ONE, RESTATED: THE TRIAL COURT ERRED IN
SENTENCING MS. SPEARS WHEN THE TRIAL COURT HAD NO
JURISDICTION OVER THE CASE BECAUSE THE MANDATE HAD
NOT YET ISSUED FROM THE COURT OF APPEALS.
On April 2, 2007, the trial court entered a judgment against Ms.
Spears assessing her sentence at two years in a state jail probated for a
term of five years. I CR 71-72. That judgment was appealed to the
Twelfth Court of Appeals. On January 9, 2008, the Court issued an
opinion and judgment affirming the judgment of the trial court. I CR 88-
90. Spears v. State, No. 12-07-00168-CR, 2008 Tex. App. LEXIS 98, (Tex.
App. – Tyler 2008, no pet.). The trial court held a hearing on March 5,
2008 sentencing Ms. Spears again to two years probated for a term of five
years. I CR 93-94. That same date the trial court also entered the terms
and conditions of probation which were later the subject of the revocation
6
proceedings in 2014. I CR 95-98. However, this Court did not issue the
Mandate in the case until March 27, 2008. I CR 101.
Until the mandate from the court of appeals issues, the case is still
on appeal. Heartfield v. Thaler, 403 S.W.3d 234 (Tex. Crim. App. 2013).
A judgment of conviction cannot be used for enhancement purposes until
the conviction has been affirmed. Arbuckle v. State, 105 S.W. 2d 219 (Tex.
Crim. App. 1937); Carter v. State, 510 S.W.2d 323 (Tex. Crim. App. 1974).
See also Coats v. State, 788 S.W.2d 674, 676 (Tex. App. – Corpus Christi
1990, no pet.).
Ordinarily, the validity of a conviction, from which no appeal was
taken, is not reviewable in the appeal of a subsequent revocation order.
Whetstone v. State, 786 S.W.2d 361, 363 (Tex. Crim. App. 1990), overruled
on other grounds by Gollihar v. State, 46 S.W.3d 243, 249-50, 256-57 (Tex.
Crim. App. 2001). An exception lies for a void judgment which recognizes
there are some rare situations in which a trial court’s judgment is
accorded no respect due to a complete lack of power to render the
judgment in question. A void judgment is a “nullity” and can be attacked
at any time. If the original judgment imposing probation was void, then
the trial court would have no authority to revoke probations, since, with
7
no judgment imposing probation (because it is a nullity), there is nothing
to revoke. Nix v. State, 65 S.W.3d 664, 667-68 (Tex. Crim. App. 2001).
While this situation was not specifically included in the nearly
exclusive list in Nix, the trial court lacked jurisdiction over the case to
enter a judgment prior to the mandate being issued. The trial court was
without power to enter the order placing Ms. Spears on probation until
after the mandate was issued by the Court of Appeals. Any order entered
between the first notice of appeal and the mandate is void because the
trial court had no jurisdiction. Deifik v. State, 58 S.W.3d 794 (Tex. App. -
Fort Worth 2001). The proper remedy is to return the parties to the
position prior to the void order. Morris v. State, 658 S.W.2d 310, 311-12
(Tex. App. – Houston [1st Dist.] 1983, no pet.).
If this Court agrees, the proper remedy is to reverse the judgment
of the trial court placing Ms. Spears on probation and remand to the trial
court placing the parties in the same position they occupied following this
Court’s first opinion.
8
SSUE TWO, RESTATED: THE TRIAL COURT ERRED IN IMPOSING
ATTORNEY FEES FOLLOWING A FINDING THAT MS. SPEARS WAS
INDIGENT AND WAS APPOINTED COUNSEL.
ISSUE THREE RESTATED: THE DISTRICT CLERK ERRED IN
INCLUDING ATTORNEY FEES FOLLOWING A FINDING THAT MS.
SPEARS WAS INDIGENT AND WAS APPOINTED COUNSEL
A. Law on Attorney’s Fees
A trial court has the authority to assess attorney’s fees against a
criminal defendant who received court-appointed counsel. TEX. CODE
CRIM. PROC. ANN. art. 26.05(g)(West 2013). Once a defendant has been
determined to be indigent, she is presumed to remain indigent for the
remainder of the proceedings unless a material change in her financial
circumstances occurs. TEX. CODE CRIM. PROC. ANN. art. 26.04(p) (West
2013). Before attorney’s fees may be imposed, the trial court must make
a determination supported by some factual basis in the record that the
defendant has financial resources to enable him to offset in whole or in
part the costs of the legal services provided. Johnson v. State, 405 S.W.3d
350, 354 (Tex. App. – Tyler 2013, no pet). If the record does not show any
material change in the defendant’s financial circumstances, the evidence
will be insufficient to support the imposition of attorney’s fees. TEX. CODE
9
CRIM. PROC. ANN. art. 26.04(p); Mayer v. State, 309 S.W.3d 552, 553, 557
(Tex. Crim. App. 2013).
Court costs are pre-determined, legislatively-mandated obligations
resulting from a conviction. See, e.g., TEX. GOV'T CODE ANN. §§
102.001-.142 (West 2013) (setting forth various court costs that a
convicted person "shall" pay). A sentencing court shall impose the
statutory court costs at the time a defendant is sentenced. Armstrong v.
State, 340 S.W.3d 759 (Tex. Crim. App. 2011); TEX. GOV’T CODE ANN.
§102.021 (West 2013). Court costs are not punitive in nature and do not
have to be included in an oral pronouncement of a sentence. Weir v.
State, 278 S.W.3d 364, 367 (Tex. Crim. App. 2009).
A cost is not payable by the person charged with the cost until a
written bill is produced or is ready to be produced, containing the items
of cost, signed by the officer who charged the cost or the officer who is
entitled to receive payment of the cost. TEX. CODE CRIM. PROC. ANN. art.
103.001 (West 2013). The clerk of the trial court is required to keep a fee
record, and a statement of an item therein is prima facie evidence of the
correctness of the statement. Owen v. State, 352 S.W.3d 542, 548 (Tex.
App.—Amarillo 2011, no pet.) (citing TEX.CODE CRIM. PROC. ANN. art.
10
103.009(a), (c)). Until a certified bill of costs has been made part of the
record, a defendant has no obligation to pay court costs. Owen, 352
S.W.3d at 547 (citing Armstrong, 340 S.W.3d at 765; Williams v. State,
332 S.W.3d 694, 699 (Tex. App. – Amarillo 2011, pet. denied).
If a criminal action is appealed, "an officer of the court shall certify
and sign a bill of costs stating the costs that have accrued and send the
bill of costs to the court to which the action or proceeding is transferred or
appealed." TEX. CODE CRIM. PROC. ANN. art. 103.006 (West 2013).
B. Standard of Review
The imposition of court costs upon a criminal defendant is a
“nonpunitive recoupment of the costs of judicial resources expended in
connection with the trial of the case.” Johnson v. State, 423 S.W.3d 385,
390 (Tex. Crim. App. 2014). When the imposition of court costs is
challenged on appeal, the court reviews the assessment of costs to
determine if there is a basis for the cost, not to determine if there is
sufficient evidence offered at trial to prove each cost. Id.
The standard for reviewing a legal sufficiency challenge is whether
11
any rational trier of fact could have found the essential elements of the
offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. at
315-16, 99 S. Ct. at 2786-787; see also Mayer v. State, 309 S.W.3d 552,
557 (Tex. Crim. App. 2010)(sufficiency review of evidence to support order
of repayment of attorney fees as costs).
A challenge to a withdrawal of funds notification is reviewed for an
abuse of discretion. Williams, 332 S.W.3d at 698. A trial court abuses
its discretion when it acts “without reference to any guiding rules and
principles. Howell v. State, 175 S.W.3d 786, 792 (Tex. Crim. App. 2005);
Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1991). The
reviewing court may modify a withdrawal order on direct appeal if the
evidence is insufficient to support the assessment of court costs. Johnson
v. State, 405 S.W.3d at 355.
C. Application to These Facts
Ms. Spears has been represented at all times following the initial
trial of the case by appointed counsel. The record contains two different
orders appointing counsel. I CR . Following a pauper’s oath application,
12
Ms. Spears was appointed counsel for purposes of the first appeal. I CR
81-83. Another attorney was appointed for the first motion to revoke. I
CR 118. A third attorney was appointed for the second motion to revoke.
I CR 139. Finally, appellate counsel was appointed for this appeal. I CR
158. A motion was filed with the trial court seeking a free reporter’s
record on appeal. I CR 161-163. This motion was granted by the trial
court without opposition from the State of Texas. I CR 164.
The application to proceed to final adjudication included an
allegation that Ms. Spears failed to pay court cost (sic), including any
appointed counsel fees. I CR 137, ¶ 6. The trial court ordered Ms. Spears
to pay any unpaid taxable court costs. I RR 46.
The March 5, 2008 order placing Ms. Spears on probation included
$263.00 in court costs. I CR 93. This amount matches the judgement
issued April 2, 2007. I CR 71. However, the bill of costs prepared by the
District Clerk’s Office on June 20, 2014 does not match either of those
amounts. I CR 151-152. The final judgment signed June 18, 2014 reflects
a zero balance for court costs, even though the bill of costs reflects a
balance of $200. I CR 146-151.
13
The majority of the items listed on the bill of costs appear to be
properly assessed costs. I CR 151. The properly assessed costs equal
$263.00 in court costs. However, a $300 fee was assessed for receiving
appointed counsel and a $350 “Refund” was assessed and added against
Ms. Spears totaling $913.00 in court costs. I CR 151.
There is no evidence to contest the finding that Ms. Spears was
found indigent. Assessment of attorney’s fees following a finding of
indigence is improper. While the final judgment does not include the
attorney’s fee, the bill of costs does, and court costs, including attorney
fees were improperly collected by the probation department impacting,
among other things the restitution owed. Why the bill of costs contains
the fee after the judgment was prepared and signed is not known.
Probation collected at least $100 of the attorney fees and applied
that amount to the court costs, instead of restitution. I RR 18. From the
bill of costs, it also appears that probation collected $350 which was then
forwarded to the Clerk’s Office for payment of the “Refund”. I CR 151.
14
D. Remedy and Relief Requested
The fee seeking reimbursement for the appointed attorney was
improperly assessed by the court and the clerk’s office. The judgment and
the bill of costs should be modified to reflect the amount of proper taxable
court costs due, and the probation department or clerk’s office should be
ordered to apply the improperly collected monies to restitution in this
case.
15
PRAYER FOR RELIEF
WHEREFORE, PREMISES CONSIDERED, Counsel respectfully
prays that this Court reverse the judgment of the trial court or in the
alternative modify the judgment of the trial court and the bill of costs to
eliminate the court costs not supported by the record.
Respectfully submitted,
/s/ James Huggler
James W. Huggler, Jr.
State Bar Number 00795437
100 E. Ferguson, Suite 805
Tyler, Texas 75702
903-593-2400
903-593-3830 fax
ATTORNEY FOR APPELLANT
16
CERTIFICATE OF SERVICE
A true and correct copy of the foregoing Brief of the Appellant has been
forwarded to counsel for the State by electronic filing on this the 5th day
of January, 2015.
/s/ James Huggler
James W. Huggler, Jr.
Attorney for the State:
Mr. Michael West
Smith County Criminal District Attorney’s Office
100 N. Broadway, 4th Floor
Tyler, Texas 75702
CERTIFICATE OF COMPLIANCE
I certify that this Brief complies with Tex. R. App. P. 9.4, specifically
using 14 point Century font and contains 3,638 words as counted by
Corel WordPerfect version x5.
/s/ James Huggler
James Huggler
17