ACCEPTED
12-15-00112-CR
TWELFTH COURT OF APPEALS
TYLER, TEXAS
9/30/2015 3:31:04 PM
Pam Estes
CLERK
ORAL ARGUMENT NOT REQUESTED
FILED IN
NO. 12-15-00112-CR
12th COURT OF APPEALS
TRIAL COURT CAUSE NO. B-21,601
TYLER, TEXAS
9/30/2015 3:31:04 PM
PAM ESTES
IN THE 12TH COURT OF APPEALS
Clerk
TYLER,TEXAS
MELISSA BROWNING HERNANDEZ
Appellant
vs.
THE STATE OF TEXAS
Appellee
APPEAL FROM THE 173 rd JUDICIAL DISTRICT COURT
HENDERSON COUNTY, TEXAS
CAUSE NO. B-21,601
HONORABLE CARTER W. TARRANCE, JUDGE PRESIDING
BRIEF FOR THE STATE
Daniel Cox
Assistant District Attorney
Henderson County
109 W. Corsicana St., Ste. 103
Athens, Texas 75751
State Bar #24074085
903.675.6100
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IDENTIFICATION OF THE PARTIES AND COUNSEL
ApPELLANT:
Melissa Browning Hernandez
ApPELLANT'S COUNSEL:
Linda Altier
1527 E. Fifth St.
Tyler, Texas 75701
903.592.4232
ApPELLEE:
The State of Texas
ApPELLEE'S COUNSEL:
Jenny Palmer
Henderson County District Attorney's Office
109 West Corsican Street
Athens, Texas 75751
903.675.6100
903.675.6196 (Fax)
Daniel Cox
Henderson County District Attorney's Office
109 West Corsican Street
Athens, Texas 75751
903.675.6100
903.675.6196 (Fax)
PRESIDING JUDGE(S):
The Honorable Judge Carter W. Tarrance
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TABLE OF CONTENTS
SUBJECT MAITER: PAGE:
Identification of the Parties and Counsel----------------------------------------------!
1ralJle ofContents---------------------------------------------------------------------------2
Index of Authorities ------------------------------------.-------.----------····---·--------3
Statement of the Case----------------------------------------------------------------------4
Appellant's Issues Presented---------------------------------------------------------- 4-5
Argument-------------------------------------------------------------------------------------5
Conclusion-----------------------------------------------------------------------------------5
Prayer---------------------------------------------------------------------------------------- 6
Certificate of Service---------------------------------------------------------------------- 7
Certificate of Compliance---------------------------------------------------------------- 7
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INDEX OF AUTHORITIES
CASES
MEYER V. STATE, 309 S.W.3D 552 (TEX.-CRIM.-App. 2010) ............................5
Page 30f8
NO. 12-15-00112-CR
MELISSA BROWNING HERNANDEZ § IN THE 12TH
§
VS. § COURT OF APPEALS
§
THE STATE OF TEXAS § TYLER, TEXAS
ApPELLEE'S BRIEF:
TO THE HONORABLE COURT OF APPEALS AND THE JUSTICES
THEREOF:
Comes now the State of Texas, by and through her attorney of record,
Henderson County Assistant District Attorney Daniel Cox, and respectfully
submits this brief on appeal.
STATEMENT OF THE CASE:
Appellant was charged by indictment for the offense of Theft Over $20,000
From an Elderly Person (C.R. 2:1-3). The trial Court found that the appellant was
indigent and appointed Linda Altier to represent the appellant (CR. 1:21). On
February 5, 2015, the appellant waived her right to a trial by jury, entered a gUilty
plea and elected to have the trial Court assess punishment (CR. 1:23-28). On
April 16,2015, after the completion of a pre-sentence investigation, the trial Court
heard evidence at a sentencing hearing (CR. 1: 36-39). At the conclusion of the
hearing, the trial Court sentenced the appellant to six years confinement in the
Texas Department of Corrections (CR. 1:26-29). Additionally, the trial Court
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ordered that the appellant repay the cost of the court appointed attorney's fees as a
part of the appellant's sentence (C.R. 1:36-37)
APPELLANT'S ISSUES PRESENTED:
I. Was the evidence sufficient to support the trial court's order for
Appellant to pay attorney's fees?
The State feels that the judgment should be modified to remove the
requirement of repayment of attorney's fees. Under Meyer v. State, once a
defendant is found by the trial court to be indigent, there must be an affirmative
finding by the trial court of an ability to repay court appointed attorney's fees.
(Meyer v. State, 309 S.W.3d 552 (Tex.-Crim.-App. 2010).
At the punishment hearing, there was no evidence presented by either party
that would show an ability to pay. As such, there is no evidence in the record to
show that the appellant was no longer indignant at the time and able to repay
attorney's fees.
CONCLUSION
There is an absence of evidence to show that Appellant, after being found
indigent and sentenced to the penitentiary, is "able to pay" or has any financial
resources that enable her to pay the attorney's fees assessed in the court's order
and judgment as required. We concur that the judgment should be modified in
accordance with the request of Appellant to delete attorney's fees and court costs.
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PRAYER
WHEREFORE, premises considered, the State, for the reasons set forth in
this brief, requests that this Honorable Court orders the judgment be reformed and
that the requirement to pay attorney's fees be deleted.
Daniel Cox
Assistant District Attorney
Henderson County Judicial Complex
109 W. Corsicana Street, Ste. 103
Athens, Texas 75751
Phone: (903) 675-6100
Facsimile: (903) 675 - 6196
State Bar No. 24074085
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CERTIFICATE OF SERVICE
I, Daniel Cox, do hereby certify that a true and correct copy of the
foregoing Brief for the State has been served upon the Appellant, Melissa
Browning Hernandez, by emailing a copy of the same to his attorney of record
Linda Altier at on this the _ day of , 2015.
Henderson County, Texas
CERTIFICATE OF COMPLIANCE
Pursuant to Rule 9.4(i)(3), the undersigned attorney certifies this rief
complies with the length compliance of the Texas Rules of Appellate
that the brief has 866 words.
ssistant District Attorney
Henderson County, Texas
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