ACCEPTED
06-15-00062-CR
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
7/6/2015 12:29:27 PM
DEBBIE AUTREY
CLERK
No. 06-15-00062-CR
IN THE COURT OF APPEALS
FILED IN
6th COURT OF APPEALS
FOR THE SIXTH APPELLATE DISTRICT TEXARKANA, TEXAS
7/6/2015 12:29:27 PM
__________________________________________________________________
DEBBIE AUTREY
Clerk
BILLY JOE WALDROUP,
APPELLANT
V.
THE STATE OF TEXAS,
APPELLEE
__________________________________________________________________
APPELLANT’S BRIEF
__________________________________________________________________
On appeal from Cause No. 44403-B
in the 124th District Court
Gregg County, Texas
__________________________________________________________________
Robert Lee Cole, Jr.
409 N. Fredonia Street, Suite 101
Longview, TX 75601
SBOT: 04547800
903-236-6288 Phone
903-236-5441 Fax
rcolejd@gmail.com
Attorney for Appellant
Oral Argument is Not Requested
IDENTITY OF PARTIES AND COUNSEL
Billy Joe Waldroup, Appellant
Gregg County Jail
101 E. Methvin Street, Suite 635
Longview, TX 75601
Robert L. Cole, Jr.
Appellant’s Counsel on Appeal
409 N. Fredonia Street, Suite 101
Longview, TX 75601
Craig L. Bass
Appellant’s Trial Counsel
440 N. Fredonia Street
Longview, TX 75601
Chris Parker
Trial Prosecutor
Gregg County District Attorney’s Office
101 E. Methvin Street, Suite 333
Longview, TX 75601
Zan Colson Brown
Appellate Prosecutor
Gregg County District Attorney’s Office
101 E. Methvin Street, Suite 333
Longview, TX 75601
Honorable Alfonso Charles
Presiding Trial Judge
124th District Court
101 E. Methvin Street, Suite 447
Longview, TX 75601
i
TABLE OF CONTENTS
Identity of Parties and Counsel…………………………………………………… i
Table of Contents…………………………………………………………………. ii
Index of Authorities….…………………………………………………………... iii
Statement of the Case…………………………………………………………….. 1
Statement Regarding Oral Argument…………………………………………….. 1
Issue Presented…………………………………………………………………… 1
The trial court erred when it ordered appellant, who was determined to be
indigent, to pay court appointed attorney’s fees.
Statement of Facts………………………………………………………………… 2
Summary of the Argument………………………………………………………... 3
Argument………………………………………………………………………….. 3
Prayer……………………………………………………………………………… 5
Certificate of Compliance…………………………………………………………. 6
Certificate of Service……………………………………………………………… 6
ii
INDEX OF AUTHORITIES
CASES PAGE
Abron v. State, 997 S.W.2d 281 (Tex.App.-Dallas 1998) ……………. 5
Armstrong v. State, 340 S.W.3d 759, 765-66 (Tex.Crim.App.2011) …. 4
Bigley v. State, 865 S.W. 26, 27-28 (Tex.Crim.App. 1993) …………… 4
Cates v. State, 402 S.W.3d 250 (Tex.Crim.App. 2013) ………………… 4
Martin v. State, 405 S.W. 35 944, 946-47 (Tex.App.-Texarkana 2013,
no pet.). ………………………………………………………………… 4
CODES, RULES AND CONSTITUTIONAL PROVISISIONS
Tex. Code Crim.Pro. 26.05g …………………………………………… 3
Tex.R.App.P. 43.2 ……………………………………………………… 4,5
iii
STATEMENT OF THE CASE
On 4 December 2014, Appellant was charged in Cause No. 44403-B with
Assault Family Violence by Impeding Breath or Blood, Tex. Penal Code 22.01
(b)(2)(B), alleged to have occurred on or about 11October 2014. (CR: p. 4).
Appellant waived his right to a jury and entered a plea of guilty to the charge 23
March 2015 without the benefit of a plea bargain agreement and the case was
ordered to be reset for a sentencing hearing. (CR: pp. 11-16) and (RR: Vol 2, pp. 6-
15). On 15 April 2015 the Trial Court found appellant guilty, and after hearing
evidence, sentenced Appellant to ten years confinement and further ordered
appellant to pay all fines and costs, and restitution (CR: pp. 33-34). No motion for
new trial was filed in this cause. Appellant timely filed his notice of appeal on 20
April 2015 (CR: p. 37). The Reporter’s record was filed 16 June 2015. Appellant’s
brief is due on or before 16 July 2015.
STATEMENT REGARDING ORAL ARGUMENT
Appellant does not request oral argument.
ISSUES PRESENTED
Issue No. 1- The trial court erred when it ordered appellant, who was
determined to be indigent, to pay court appointed attorney’s fees.
1
STATEMENT OF FACTS
Billy Joe Waldroup, hereinafter referred to as “Waldroup” elected to enter a
plea of guilty before the trial court on the charge of Assault Family Violence by
Impeding Breath or Blood (RR: Vol. 2, pp. 6-7). The trial court admonished
Waldroup as to the consequences of his plea including his waiver of a right to jury
trial, the range of punishment, and the consequences of entering into an open plea.
(RR: Vol. 2, pp 7-15).
At sentencing, the trial court inquired as to whether the case was given to
continue as an open plea and Waldroup confirmed. (RR: Vol. 3, p. 4). Appellee,
hereinafter referred to as “The State” rested and Waldroup then presented his case
with the testimony of Waldroup himself with both direct and cross-examination.
(RR: Vol. 3, pp.5-28).
Waldroup’s trial counsel requested the Court to place Waldroup on a period
of probation (RR: Vol. 3, p.30). The State also gave closing statements (RR: Vol.
3, 30-32). The State argued that “this could have been enhanced to a 2-to-20 based
on his prior escape, he’s lucky to walk out of here with 10 years’ TDC, and I don’t
see why that’s not what should happen to him.” (RR: Vol. 3, p. 32).
The trial court then sentenced Waldroup 10 years confinement with costs
assessed to include the repayment of court appointed attorney fees.
2
SUMMARY OF THE ARGUMENT
In the only issue, Appellant complains that the Honorable Judge Alfonso
Charles improperly assessed court costs in addition to the period of confinement
despite having previously determined that the defendant was indigent and without
a finding that Appellant had financial resources that would enable him to offset the
cash of legal services provided in violation of Texas Code of Criminal Procedure
Art. 26.05(g).
ARGUMENT
In 30 October 2014 the trial court determined that Appellant was indigent
and appointed counsel to represent him in the trial of this case (CR: pp. 18-19).
The trial court again appointed counsel to represent Appellant on this appeal (RR:
Vol. 3, p. 37).
Texas Code Criminal Procedure Article 26.05 (g) (West Supp. 2014) gives
authority to a trial court to order the reimbursement of court appointed attorney
fees only in such a case if “the court determines that a defendant has financial
resources that enable him to offset in part or in whole the costs of the legal services
3
provided, including any expenses and costs.”
There was no mention anywhere during the verbal pronouncement of
sentence that Appellant had any financial resources at his disposal that enabled him
to pay his court-appointed attorney fees. (RR: Vol. 4, pp. 32-35). Further, the
verbal record is silent as to the payment of fines, costs, and court appointed
attorneys fees.
The judgment, however, assesses attorney fees of $1062.50 and court costs
of $314.00 and ordered appellant to “pay all fines, court costs, and restitution as
indicated above.” (CR: pp. 33-34).
The assessment for attorney’s fees is unlawful, “because the ability to pay
are critical elements necessary for a court to order payment for legal services
provided Armstrong v. State, 340 S.W. 3d 759, 765-66 (Tex. Crim. App. 2011).
The assessment of attorney’s fees is therefore erroneous and requires removal.
Cates v. State, 402 S.W.3d 250 (Tex. Crim. App. 2013); Martin v. State, 405
S.W.3d 944, 946-47 (Tex. App.-Texarkana 2013, no pet.)
The Texas Rules of Appellate Procedure 43.2 provides many remedies for
the Court of Appeals. Tex. R. App. P. 43.2(b) provides that the Court of Appeals
may “modify the trial court’s judgment and affirm it modified. See also Bigley v.
4
State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 993) and also Abron v. State, 997
S.W.2d 281 (Tex. App.-Dallas 1998). While Tex. R. App. 43.2(d) provides the
power to “reverse the trial court’s judgment and remand the case for further
proceedings.
PRAYER
Given that the trial court made no determination that Appellant had the
ability to pay for his appointed counsel fees, appellant prays that this cause be
reversed and remanded for new sentencing.
In the alternative, if this Honorable Court elects not to reverse and remand,
Appellant requests the judgment be modified to remove the amount assessed for
attorney’s fees.
Respectfully Submitted,
/s/ Robert L. Cole, Jr.
Robert L. Cole, Jr.
SBOT: 04547800
409 N. Fredonia, Suite 101
Longview, TX 75601
903-236-6288 Phone
903-236-5441 Fax
rcolejd@gmail.com
5
CERTIFICATE OF COMPLIANCE
I hereby certify that this computer generated document contains 901 words
as limited by Texas Rule of Appellate Procedure Rule 9.4.
/s/ Robert L. Cole, Jr.
ROBERT L. COLE, JR.
Counsel for Appellant
CERTIFICATE OF SERVICE
I hereby certify that on this the 6th day of July 2015, a copy of the foregoing
has been hand delivered to the Gregg County District Attorney’s Office, 101 E.
Methvin Street, Suite 333, Longview, TX 75601 with attention to Zan Colson
Brown, Attorney for Appellee.
/s/ Robert L. Cole, Jr.
ROBERT L. COLE, JR.
Counsel for Appellant
6