ACCEPTED
12-15-00212-CR
TWELFTH COURT OF APPEALS
TYLER, TEXAS
10/12/2015 1:39:01 PM
Pam Estes
CLERK
No. 12-15-00212-CR
FILED IN
12th COURT OF APPEALS
IN THE TWELFTH COURT OF APPEALS TYLER, TEXAS
TYLER, TEXAS 10/12/2015 1:39:01 PM
PAM ESTES
Clerk
TONY LAMONT JONES
Appellant,
v.
THE STATE OF TEXAS
Appellee
On Appeal from the 7th District Court of Smith County, Texas
Trial Cause No. 007-0812-14
ORAL ARGUMENT NOT REQUESTED
Austin Reeve Jackson
Texas Bar No. 24046139
112 East Line, Suite 310
Tyler, TX 75702
Telephone: (903) 595-6070
Facsimile: (866) 387-0152
IDENTITY OF PARTIES AND COUNSEL
Attorney for Appellant
Appellate Counsel:
Austin Reeve Jackson
112 East Line, Suite 310
Tyler, TX 75702
Trial Counsel:
O.W. Loyd
231 S. College Ave.
Tyler, TX 75702
Attorney for the State on Appeal
Michael J. West
Assistant District Attorney, Smith County
4th Floor, Courthouse
100 North Broadway
Tyler, TX 75702
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TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ................................................................. ii
TABLE OF CONTENTS .............................................................................................. iii
INDEX OF AUTHORITIES ......................................................................................... iv
STATEMENT OF THE CASE .......................................................................................2
ISSUES PRESENTED ....................................................................................................2
STATEMENT OF FACTS ..............................................................................................2
SUMMARY OF THE ARGUMENT ..............................................................................3
ARGUMENT ..................................................................................................................4
I. THE TRIAL COURT ERRED IN ASSESSING ATTORNEY'S
FEES AGAINST AN INDIGENT DEFENDANT ........................................4
Applicable Law ..........................................................................................................4
Relevant Facts ............................................................................................................5
Conclusion ..................................................................................................................6
PRAYER FOR RELIEF ..................................................................................................7
CERTIFICATE OF SERVICE ........................................................................................7
CERTIFICATE OF COMPLIANCE ..............................................................................7
iii
INDEX OF AUTHORITIES
TEXAS COURT OF CRIMINAL APPEALS:
Mayer v. State,
309 S.W.3d 522 (Tex.Crim.App. 2010) ........................................................ 4
TEXAS COURTS OF APPEAL:
Barrera v. State,
291 S.W.3d 515 (Tex.App.—Amarillo 2009) ............................................... 5
Williams v. State,
332 S.W.3d 694 (Tex.App.—Amarillo 2011) ............................................... 4
STATUTES:
TEX. CODE CRIM. PROC. art. 26.04.................................................................... 4
TEX. CODE CRIM. PROC. art. 26.05.................................................................... 4
iv
No. 12-15-00212-CR
IN THE TWELFTH COURT OF APPEALS
TYLER, TEXAS
TONY LAMONT JONES
Appellant,
v.
THE STATE OF TEXAS
Appellee
On Appeal from the 7th District Court of Smith County, Texas
Trial Cause No. 007-0812-14
TO THE HONORABLE JUSTICES OF THE COURT:
Comes Now, Austin Reeve Jackson, attorney for Tony Jones, and files this
brief pursuant to the TEXAS RULES OF APPELLATE PROCEDURE, and would show
the Court as follows:
STATEMENT OF THE CASE
Tony Jones seeks to appeal his conviction and sentence for the felony
offense of theft. (I CR 67). After being indicted for this offense in the Seventh
District Court of Smith County in 2014, Mr. Jones entered a plea of “guilty” and,
by agreement, was placed on four years’ deferred adjudication community
supervision. (I CR 1, 41). In July of this year the trial court revoked that
community supervision and sentenced Mr. Jones to serve a term of twenty-two
months’ confinement. (I CR 72). Sentence was pronounced on 23 July and notice
of appeal then timely filed. (I CR 72, 78).
ISSUES PRESENTED
I. THE TRIAL COURT ERRED IN ASSESSING
ATTORNEY’S FEES AGAINST AN INDIGENT
DEFENDANT.
STATEMENT OF FACTS
After having been indicted for the felony offense of theft, Appellant, Mr.
Tony Jones, entered a plea of “guilty” before the Seventh District Court of Smith
County and, pursuant to a plea agreement, was placed on four years’ deferred
adjudication community supervision. (I CR 1, 41).
Unfortunately, in July of this year Mr. Jones found himself facing an
application to revoke that community supervision. (I CR 48). Among other
things, the application alleged that Ms. Loven had violated the terms of her
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community supervision by failing to report, failing to maintain employment,
failure to complete a theft intervention class, and failure to perform community
service. (Id.). To all these allegations Mr. Jones entered pleas of “not true.” (VI
RR 8). However, during the hearing Mr. Jones testified and admitted the truth of
all of the allegations made against him. (VI RR 27-39). Based on the evidence
presented, the trial court found it to be true that Mr. Jones had violated the terms
and conditions of his community supervision and the court then revoked the
community supervision, adjudicated guilt, and sentenced Mr. Jones to serve a term
of twenty-two months’ confinement. (I CR 71). Sentence was pronounced on 23
July and notice of appeal then timely filed. (I CR 72, 78).
SUMMARY OF ARGUMENT
In the absence of some evidence that a defendant who has previously been
determined to be indigent has the resources to pay all or part of his attorney’s fees,
a trial court errs in imposing the same as a cost of court. Because in the instant
case there was no such evidence, and because Mr. Jones had been determined to be
indigent, the Court should reform the judgment by removing the charged attorney’s
fees.
Alternatively, where the record is not clear as to whether the attorney’s fees
assessed where included in full or part in the amount of court costs ordered, and, in
fact, where the record is silent as to how the amount of costs ordered was derived
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from the list of costs in the bill of costs, the Court should remand the case for new
findings on that issue or the creation of a new bill of costs.
ARGUMENT
I. THE TRIAL COURT ERRED IN ASSESSING
ATTORNEY’S FEES AGAINST AN INDIGENT
DEFENDANT.
Applicable Law
Article 26.05 of the Texas Code of Criminal Procedure provides that the
costs of appointed counsel may be imposed against a defendant if the court finds
that the defendant “has financial resources that enable him to offset in part or in
whole the costs of the legal services provided.” TEX. CODE CRIM. PROC. art.
26.05(g). However, where the record before the court fails to establish a
defendant’s financial ability to offset such costs, “a trial court errs if it orders the
reimbursement of court-appointed attorney’s fees.” Williams v. State, 332 S.W.3d
694, 699 (Tex.App.—Amarillo 2011, pet. denied) (citing Mayer v. State, 309
S.W.3d 522 (Tex.Crim.App. 2010). Further, once a defendant has been found to
be indigent, that finding continues unless evidence establishes a material change in
his financial status. Id. (citing TEX. CODE CRIM. PROC. art. 26.04(p); Mayer, 309
S.W.3d at 557). Where attorney’s fees have erroneously been imposed the proper
remedy is to reform the judgment by deleting the same. Mayer, 309 S.W.3d at
557.
4
Relevant Facts
After being indicted for the underlying offense Mr. Jones was determined to
be indigent and granted court appointed counsel. (III RR 3-8). The same finding
was made when Mr. Jones returned to court on the revocation proceeding. (I CR
64). During that proceeding the defendant stated that he had a 401k account of
some sort. (VI RR 30-31). At no time though was the amount of money in that
account discussed, no testimony or evidence was developed as to whether any such
funds even remained, and there was no further testimony regarding any assets Mr.
Jones may own. (VI RR gen.). The trial court did indicate that it questioned
whether Mr. Jones, based on the statement regarding the 401k, would be entitled to
appointed counsel on appeal. (VI RR 48). A continued finding of indigence and
the appointment of appellate counsel, however, resolved that issue. (I CR 75).
When imposing punishment the trial court ordered payment of costs of
court. (I CR 69). A Bill of Costs supporting those costs was prepared and reflects
that $300 of the court costs is for attorney fees. (I CR 73). However, the record
does not contain any information that would indicate that the original finding of
indigence had changed or that Mr. Jones had the ability to pay any or all of the
costs for his appointed counsel. (I CR gen.; VI RR gen.) Because no such
evidence exists the trial court erred in imposing attorney’s fees against Mr. Jones.
Barrera v. Sate, 291 S.W.3d 515, 518 (Tex.App.—Amarillo 2009, no pet.).
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Alternatively, because the record is not clear as to how the amount ordered
as costs was calculated, it is prayed that the Court remand the case for clarification
as to the basis, if any, for the costs ordered. Specifically, The court costs ordered
paid in the court’s written judgment and withholding order was for an amount of
$289.00. (I CR 67, 69). Although this amount is less than the $300 ordered in
attorney’s fees, the record is unclear as to whether that $289 amount includes any
part of the attorney’s fees or how that amount was otherwise calculated. (Id.). In
order to ensure that the costs ordered do not include any legally impermissible
costs, and to ensure that Smith County will not wrongfully seek to collect
attorney’s fees against Mr. Jones in the future, the Court should remand the case
for further clarification or order the trial court to submit a new bill of costs
showing the source or sources that form the basis for the $289 ordered.
Conclusion
Given that the record establishes that Mr. Jones was indigent at the time of
trial, and because the record does not establish any support for the conclusion that
that status changed, the Court should reform the trial court’s judgment as to the
assessment of attorney’s fees by deleting the $300 in attorney’s fees ordered or,
alternatively, remand the case for supplemental findings or a supplemental bill of
costs detailing those fees on which the trial court relied in calculating the amount
ordered.
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PRAYER FOR RELIEF
WHEREFORE, PREMISES CONSIDERED, it is respectfully prayed that
the Court reform the written judgment to omit attorney’s fees.
Respectfully submitted,
/s/ Austin Reeve Jackson
Texas Bar No. 24046139
112 East Line, Suite 310
Tyler, TX 75702
Telephone: (903) 595-6070
Facsimile: (866) 387-0152
CERTIFICATE OF SERVICE
I certify that a true and correct copy of this brief was delivered to counsel for
the State by efile / facsimile concurrently with its filing in the Court.
/s/Austin Reeve Jackson
CERTIFICATE OF COMPLIANCE
I certify that this document complies with the requirements of Rule 9.4 and
consists of 1,355 words.
/s/ Austin Reeve Jackson
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