ACCEPTED
14-14-01025-CR
FOURTEENTH COURT OF APPEALS
HOUSTON, TEXAS
4/20/2015 3:02:08 PM
CHRISTOPHER PRINE
CLERK
No. 14-14-01025-CR
14-14-01026-CR
14-14-01027-CR
FILED IN
14th COURT OF APPEALS
IN THE COURT OF APPEALS HOUSTON, TEXAS
FOURTEENTH DISTRICT 4/20/2015 3:02:08 PM
HOUSTON, TEXAS CHRISTOPHER A. PRINE
Clerk
CARLOS GALLEGOS-PIEDRA,
Appellant
Vs.
THE STATE OF TEXAS,
Appellee
ON APPEAL FROM CAUSE NO. 73552, 73600, 74807
412TH DISTRICT COURT, BRAZORIA COUNTY, TEXAS
HONORABLE W. EDWIN DENMAN JUDGE PRESIDING
BRIEF FOR THE APPELLANT
Joseph Kyle Verret
THE LAW OFFICE OF KYLE VERRET, PLLC
Counsel for Appellant
TBN: 240429432
11200 Broadway, Suite 2743
Pearland, Texas 77584
Phone: 281-764-7071
Fax: 281-764-7071
Email: kyle@verretlaw.com
ATTORNEY FOR APPELLANT ORAL ARGUMENT NOT REQUESTED
DATE: April 20, 2015
No. 14-14-01025-CR
14-14-01026-CR
14-14-01027-CR
IN THE COURT OF APPEALS
FOURTEENTH DISTRICT
HOUSTON, TEXAS
CARLOS GALLEGOS-PIEDRA,
Appellant
Vs.
THE STATE OF TEXAS,
Appellee
BRIEF FOR THE APPELLANT
TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:
CARLOS GALLEGOS-PIEDRA, the Defendant in Cause 73552, 73600, 74807 in the
412th DISTRICT COURT, Brazoria County, Texas, respectfully submits this brief, and
would respectfully show the Court the following:
i
TABLE OF CONTENTS
Parties to the Case…………………………………………………………………..…iii
List of Authorities………………………………………………………………………v
Statement of the Case………………………………………………………………….vi
Statement Regarding Oral Argument………………………………………...…….....vii
Issues Presented……………………………………………………………………....vii
Summary of the Argument……………………………………………………….…….1
Statement of Facts………………………………………………………………….…..2
Appellant’s Point of Error………………………………………………………….…..9
The evidence is insufficient to support the trial court’s order that Appellant
reimburse Brazoria County Collections Department for the payment of counsel
appointed on account of Appellant’s indigence.
Standard of Review…………………………………………………………….9
Relevant Facts…………………………………………………………..…..….10
Analysis………………………………………………………………..…..…..10
Conclusion and Prayer………………………………………………………………..12
Certificate of Service…………………………………………….................................13
Certificate of Word Count…………………………………...………………...…..….13
ii
PARTIES TO THE CASE
APPELLANT: CARLOS GALLEGOS-PIEDRA
Attorney for Appellant at Trial:
Name: Luis Ledesma
SBN: 12108750
Address: P.O Box 204
West Columbia, Texas 77486
Attorney for Appellant on Appeal:
Name: Joseph Kyle Verret
SBN: 24042932
Address: The Law Office of Kyle Verret, PLLC
1200 Broadway, Suite 2743
Pearland, Texas 77584
Phone: 281-764-7071
Fax: 281-764-7071
Email: kyle@verretlaw.com
APPELLEE: THE STATE OF TEXAS
Attorney’s for the State at Trial:
Name: Chase Clayton
SBN: 24072040
Address: 111 East Locus, Suite 408A
Angleton, Texas 77515
Name: Robyn Griffith
SBN: 24012738
Address: 111 East Locus, Suite 408A
Angleton, Texas 77515
Attorney for the State on Appeal:
Name: Jeri Yenne
SBN: 04240950
Name: David Bosserman
SBN: 02679520
Address: Brazoria County Criminal District Attorney
111 East Locust Street, Suite 408A
iii
Angleton, Texas 77515
Phone: 979-864-1230
Fax: 979-864-1525
iv
LIST OF AUTHORITIES
Statutes
Tex. Code Crim. Proc. Ann. Art. 26.04(Lexis current through 2013 3d C.S.).
Tex. Code Crim. Proc. Ann. Art. 26.05(Lexis current through 2013 3d C.S.).
Appellate Precedent
Barrera v. State, 291 S.W.3d 515, 518 (Tex. App. --Amarillo 2009, no pet.)
Mayer v. State, 309 S.W.3d 552, 555-56 (Tex. Crim. App. 2013).
v
STATEMENT OF THE CASE
On June 19, 2014, Appellant was indicted for the offense of Driving While
Intoxicated Third or More. (73552 C.R. at 5). On July 8, 2014, Appellant was
indicted for the offense of Possession of a Controlled Substance Penalty Group One,
less than one gram. (73600 C.R. at 5). On November 20, 2014, Appellant was
indicted for the offense of Bribery (74807 C.R. at 5).
Appellant filed a motion to consolidate all three cause numbers on October 24,
2014. (73552 C.R. at 13; 73600 at 15).
A consolidated jury trial on all three causes numbers was held on December 1,
2014. (2 R.R. at 4, 8). Appellant entered a plea of not guilty to the allegation of
Driving While Intoxicated, Third or More, Bribery, and Possession of a Controlled
Substance Penalty Group One (2 R.R. at 11-13). The jury found Appellant guilty of
Driving While Intoxicated Third or More, Bribery, and Possession of a Controlled
Substance, as indicted. (73552 C.R. at 49, 73600 C.R. at 40, 74807 C.R. at 31).
The jury assessed punishment in case numbers 73552 and 74807. Appellant
was sentenced to 10 years confinement in the penitentiary for Driving While
Intoxicated Third or More. Appellant was sentenced to 15 years confinement in the
penitentiary for Bribery. (74807 C.R. at 39). The State and Appellant agreed to
punishment in Cause 73600. (5 R.R. 32-35, 7 R.R. at 10-11).
Notice of appeal was filed in all three causes on December 17, 2014. (73552
C.R. at 67, 73600 C.R. at 53, 74807 C.R. at 49).
vi
STATEMENT REGARDING ORAL ARGUMENT
Oral argument is not requested.
ISSUES PRESENTED
Appellants First Point of Error:
The evidence is insufficient to support the trial court’s order that Appellant
reimburse Brazoria County Collections Department for the payment of counsel
appointed on account of Appellant’s indigence.
vii
SUMMARY OF THE ARGUMENT
The evidence is legally insufficient to support the trial court’s order that
Appellant reimburse Brazoria County for the payment of Appellant’s court appointed
counsel. Appellant was indigent and was appointed counsel to represent him at trial
and on appeal. There is no evidence in the record to support the trial court’s order that
Appellant repay court appointed attorney’s fees.
1
STATEMENT OF FACTS
Testimony of Trooper Natee Wong
On April 12, 2014, Trooper Natee Wong was working patrol in Alvin, Brazoria
County, Texas. (3 R.R. at 45, 59). At around 3 a.m., Trooper Wong was driving
through Alvin when he observed a Dodge pickup driving under the speed limit. (3
R.R. at 46). Trooper Wong turned his car around to follow the pickup. (3 R.R. at 47).
Wong testified that driving a vehicle driving at a low speed without an apparent reason
might be a sign of an intoxicated driver. (3 R.R. at 47). Wong testified that the
pickup swerved within its own lane. (4 R.R. at 48). As Wong was following the
pickup, he saw its left turn signal activate where there was nowhere on the road to turn
left. (3 R.R. at 48-49). The pickup then drove on the improved shoulder on the right
side of the road. (3 R.R. at 49). The then traveled from the shoulder to the left-hand
turn lane and stopped. (3 R.R. at 50). Trooper Wong turned on his overhead lights
and Appellant stepped out of the driver’s seat of the vehicle. (3 R.R. at 53).
Trooper Wong motioned for Appellant to come towards him so that they could
stand off out of the way of traffic. (3 R.R. at 55). When Wong and Appellant started
talking, Wong noticed Appellant to have a strong odor of alcoholic beverage, red
glassy eyes, and dilated pupils. (3 R.R. at 55, 60). Wong testified that Appellant had a
gazing stare “off into space.” (3 R.R. at 55-56). He testified that Appellant seemed
relaxed and carless. (3 R.R. at 56).
2
Trooper Wong told Appellant to stay where he was and went to check on the
passengers in the pickup. (3 R.R. at 57). Wong saw several open containers in the
pickup. (3 R.R. at 57). Based on his observation of the passengers in the vehicle, red
glassy eyes, strong odor of alcoholic beverages and open containers, Wong believed
the passengers to be intoxicated. (3 R.R. at 58).
Wong attempted to perform field sobriety tests on Appellant. (3 R.R. at 61). As
Wong was attempting to administer the horizontal gaze nystagmus test, he noted
Appellant was swaying. (3 R.R. at 62-63). Wong stopped administering the tests
because of a language barrier: Appellant spoke Spanish and Wong did not speak
Spanish. (3 R.R. at 63). Wong testified that even though he was not able to administer
the field sobriety tests, he believed, based on the totality of the circumstances, that
Appellant had lost the normal use of his mental and physical faculties. (3 R.R. at 63-
67).
After deciding to arrest Appellant, Wong performed a search incident to arrest of
Appellant’s person and found a plastic baggy with a white powdery substance from
Appellant’s pocket. (3 R.R. at 76-77). Based on his training and experience, Wong
testified that he believed it was a usable amount of cocaine. (3 R.R. at 78). Wong
testified that he packaged the baggy of the white substance and secured it in his trunk.
(3 R.R. at 79). Wong testified that he submitted the substance to the Brazoria County
Crime Lab on April 16 under lab number BCCL-14-0723. (3 R.R. at 79-83,88).
3
Wong testified that though he had not received training as a drug recognition
expert at the time of Appellant’s arrest, he had since then. (3 R.R. at 42, 89-90).
Wong testified that Appellant having dilated pupils on the night of his arrest was
consistent with cocaine Appellant’s use of cocaine. (3 R.R. at 90).
Trooper Wong testified that after he makes an arrest for driving while
intoxicated he usually reads the arrested person a DIC 24. (3 R.R. at 94). This form
informs the arrested person of their right to refuse a blood or breath test and the
consequence of refusal. (3 R.R. at 94). Wong showed Appellant an electronic copy of
the DIC 24 in Spanish for Appellant to read and played an audio recording of the DIC
24 being read in Spanish. (3 R.R. at 95-97; 9 R.R. Exhibit 9). The audio requested a
specimen of blood. (3 R.R at 97).
Wong testified that Appellant never refused to provide a specimen. (3 R.R. at
98). Wong testified that he did not ask Appellant whether he would provide a
specimen of blood. (3 R.R. at 99). Wong took Appellant to the hospital. (3 R.R. at
99). They walked inside, sat down and waited for the person who would draw blood.
(3 R.R. at 99). Wong took the handcuffs off Appellant and told him to relax. (3 R.R at
99). When the nurse arrived, Appellant held out his arm. (3 R.R. at 101-102). Wong
testified Appellant never asked any questions, did not fight, refuse, indicate he was in
pain, pull back his arm, or do anything else suggesting that he did not consent to the
blood draw. (3 R.R. at 100-102).
4
Wong testified that Appellant’s blood was drawn by a hospital employee named
Nancy Lopez. (3 R.R. at 109). Wong provided the vials for the blood draw. (3 R.R. at
108). He witnesses the blood draw. (3 R.R. at 109-110). After the blood draw, he
flipped the test tubes back and forth, per procedure. (3 R.R. at 110). He then sealed
the vials into their box and marked them. (3 R.R. at 111). He secured the blood in the
trunk, then at some time he moved it to a locked refrigerator in his office. (3 R.R. at
112-113). He submitted the blood with the cocaine on April 16. (3 R.R. at 113).
Wong testified that while he was in his car with Appellant, Appellant offered to
pay Wong money. Appellant told Wong he would give him some money, 200 or 300,
to let Appellant go home. (3 R.R. at 121, 160; 9 R.R. Exhibit 11). Wong testified that
he is a peace officer commissioned by the Department of Public Safety. (4 R.R. at 5).
When Appellant offered to pay him money, Wong was not a political figure, that he
was not being offered a political contribution, or being offered an expenditure made in
accordance with the Texas Government Code. (5 R.R. at 5).
Testimony of Nancy Lopez
Nancy Lopez a phlebotomist employed at Angleton Danbury Hospital at the
time of Appellant’s arrest was called to testify by the State. (3 R.R. at 165-166). She
drew Appellant’s blood. (3 R.R. at 168). She testified that she speaks both English
and Spanish. (3 R.R. at 168). She testified that Appellant did not fight her or give her
any indication that he did not want his blood drawn. (3 R.R. at 168, 172). She
testified that the blood draw occurred in a sterile room: the triage room of the hospital.
5
(3 R.R. at 169). She used either iodine or betadine to clean Appellant’s arm before the
blood draw. (3 R.R. at 173). She indicated that her name along with 4/12 at 4:02 a.m.
was written on the vials in evidence. (3 R.R. at 170-171).
Testimony of Marcy Farley
Marcy Farley, an AFIS latent print examiner, employed by the Brazoria County
Sheriff’s Department, testified at trial. (3 R.R. at 175). She took Appellant’s prints the
morning of her testimony. (3 R.R. at 178). She compared those prints to the
fingerprints on State’s Exhibits 13, 14, and 15. (3 R.R. at 179). She testified that the
prints she took from Appellant matched those on State’s Exhibits 13, 14, and 15. (3
R.R. at 180). State’s Exhibits 13, 14, and 15, records of prior convictions for Driving
While Intoxicated offenses styled State of Texas v. Carlos Gallegos, were admitted
without objection. (3 R.R. at 180; 9 R.R. Exhibits 13, 14, and 15).
Testimony of Paul Van Dorn
Paul Van Dorn, lead chemist of the Brazoria County Crime Lab was called to
testify by the State. (3 R.R. at 184). He testified that the Brazoria County Crime Lab
is accredited by the American Society of Crime Laboratory Directors Laboratory
Accreditation Board and Texas Department of Public Safety. (3 R.R. at 186, 205).
Mr. Van Dorn testified that he performed a presumptive microcrystalline test
and a KOH odor test on the off-white powder substance submitted to the lab under
number BCCL-14-0723. (3 R.R. at 194-195). Both tests indicated that the substance
was cocaine, so Mr. Van Dorn proceeded to conduct a gas chromatograph mass
6
spectroscopy on a gaseous extract of the substance. (3 R.R. at 195). This test also
indicated that the substance was cocaine. (3 R.R. at 196). Mr. Van Dorn testified that
it weighed 0.0248 grams. (3 R.R. at 198).
Mr. Van Dorn testified that his records showed that the lab received the box of
Appellant’s blood on April 16, 2014. (3 R.R. at 202). His records reflect that the
blood was stored in the crime lab’s “bio C fridge” where evidence is stored prior to
testing. (3 R.R. at 202). Mr. Van Dorn tested Appellant’s blood for the presence of
alcohol by way of a Head Space FID analysis. (3 R.R. at 205). Mr. Van Dorn testified
that the test indicated that Appellant’s blood had .209 grams ethanol per 100 milliliters
of blood. (3 R.R. at 211). Mr. Van Dorn testified that Appellant was more than twice
the legal limit of intoxication. (3 R.R. at 211).
Testimony of Appellant at Punishment
Appellant, Carlos Gallegos, testified during the punishment phase of trial. (5
R.R. at 6). He testified that he lived around Houston and had family in Rosharon. (5
R.R. at 6-7). He testified that he worked in construction and as a welder. (5 R.R. at
7). He testified that he had never before been convicted of a felony. (5 R.R. at 7-8).
He testified that he had been on probation before and had his probation revoked
because he did not go to the Alcoholics Anonymous classes. (5 R.R. at 10). He
testified that he understood that if he were granted probation, that he would have to
comply with intensive counseling conditions and possibly inpatient treatment. (5 R.R.
7
at 11-12). Understanding this, he asked the jury to sentence him to probation. (5 R.R.
at 12).
He testified that he did not agree with the jury’s verdict regarding the bribery
charge. (5 R.R. at 12-13). He testified that he had the cocaine because a person that
he did not know in the parking lot of a gas station gave it to him. (5 R.R. at 13).
Appellant testified that he had been at a bar in Alvin the night of his arrest. (5
R.R. at 16). He testified that he had two or three beers at the bar. (5 R.R. at 17). Prior
to arriving at the bar, he had some beer. (5 R.R. at 18-19).
8
APPELLANT’S FIRST POINT OF ERROR
The evidence is insufficient to support the trial court’s order that Appellant
reimburse Brazoria County Collections Department for the payment of counsel
appointed on account of Appellant’s indigence.
Standard of Review and Applicable Law
An appellate court reviewing an order to repay court appointed attorney’s fees
reviews the record to determine whether there is sufficient evidence to support the
order. Mayer v. State, 309 S.W.3d 552, 555-56 (Tex. Crim. App. 2013). Evidentiary
sufficiency “is measured by viewing all of the record evidence in the light most
favorable to the verdict.” Id. at 557. Ordinarily, sufficiency of the evidence may be
raised for the first time on appeal, without an objection at the trial court level. Mayer,
309 S.W.3d at 556.
A trial court’s authority to order that defendant repays attorney’s fees as court
costs after a conviction stems from Tex. Code Crim. Proc. Ann. Art. 26.05(Lexis
current through 2013 3d C.S.). Once a defendant has been found to be indigent, the
defendant is “presumed to remain indigent for the remainder of the proceedings in the
case unless a material change in the defendant’s financial status occurs.” Tex. Code
Crim. Proc. Ann. Art. 26.04(p)(Lexis current through 2013 3d C.S.). The trial court
may only order that a defendant repay his court appointed attorney’s fees,
[i]f 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 provided,
including any expenses and costs, the court shall order the defendant to pay
during the pendency of the charges or, if convicted, as court costs the amount
9
that it finds the defendant is able to pay.
Tex. Code Crim. Proc. Ann. Art. 26.05(g)(Lexis current through 2013 3d C.S.).
Relevant Facts
Appellant was appointed trial counsel on December April 22, 2014. (73552
Supp. C.R. at 4). According to the notice of appointment, Appellant was in jail at the
time of appointment. (73552 Supp. C.R. at 4). After trial, the trial court ordered
Appellant to repay $3,000 in attorney’s fees. (73552 C.R. at 63). There is no evidence
that Appellant posted bail during the pendency of this case as there is no bail bond
filed in the record.
There is no affidavit of indigence in the record in this cause, or its companion
causes, which are also on appeal before this Court. There is no evidence of
Appellant’s finances other than that he was appointed counsel for trial and appeal, he
was incarcerated at the time of the appointment, and does not to appear to have made
bail prior to trial.
Analysis
There is no evidence supporting the trial court’s order that Appellant repay his
court appointed attorney’s fees. While in jail, Appellant was appointed trial counsel.
(73552 Supp. C.R. at 4). After Appellant was convicted, the trial court ordered that he
repay attorney’s fees in the amount of $3,000.00. (73552 C.R. at 63).
The facts related to the application for a court appointed attorney and the trial
court’s order to repay attorney’s fees are almost identical between Mayer v. State and
Appellant’s case. See Mayer, 309 S.W.3d 552. In Mayer, the defendant filed an
10
Affidavit of Financial Status including “a request for a court appointed attorney to
represent him because he did not have the financial ability to hire his own attorney.”
Mayer, 309 S.W.3d at 554. The affidavit stated that he was unemployed and
supporting himself on government benefits. Id. After he was convicted, the defendant
filed a pro se notice of appeal and an affidavit of financial status again requesting
appointed counsel. Id. There was no evidence in the record in Mayer that supported
the trial court’s order that the defendant repay the court appointed attorney’s fees. Id.
at 556.
Appellant was found to be indigent at the inception of this case and was
appointed a court appointed attorney to represent him at trial. (73552 Supp. C.R. at 4).
After being convicted, the court found the Appellant to be indigent and
appointed the Appellant counsel on appeal. (73552 C.R. at 65). Appellant was in jail
at the time counsel was appointed. (73552 Supp. C.R. at 4) There is no evidence in the
record that he ever posted bail on any of these causes. As in Mayer, there is no
evidence in the record to support the trial court’s order that Appellant repay his court
appointed attorney’s fees.
The trial court may only order a defendant to repay his court appointed attorney
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 provided.” Tex. Code Crim.
Proc. Ann. Art. 26.05(g). A court’s finding that a defendant has such financial
resources that would enable him to offset the cost of legal services provided must be
11
supported by evidence in the record. Barrera v. State, 291 S.W.3d 515, 518 (Tex. App.
--Amarillo 2009, no pet.). There is no evidence in the record to support a finding that
the Appellant has “financial resources that enable him to offset in part or in whole the
costs of the legal services provided.” As such, the evidence supporting the court’s
order that Appellant repay his court appointed attorney’s fees is legally insufficient and
has no basis in the record.
The court of appeals in Mayer reformed the trial court’s judgment to delete the
paragraph ordering the defendant to repay attorney’s fees. Mayer v. State, 274 S.W.3d
898, 901-02 (Tex. App. Amarillo 2008, pet. granted.). The Court of Criminal Appeals
found this to be the proper remedy. Mayer, 309 S.W.3d at 557.
Appellants prays that this Court find that there is no evidence supporting the
trial court’s order that the Appellant repay his court appointed attorney fees and reform
the judgment to remove the order.
CONCLUSION AND PRAYER
The Appellants prays that this Court find that there is no evidence supporting
the trial court’s order that the Appellant repay his court appointed attorney fees and
reform the judgment to remove the order. Appellant prays for any and all relief for
which he may be eligible under the law
Respectfully submitted,
/s/ Joseph Kyle Verret
Joseph Kyle Verret
THE LAW OFFICE OF KYLE VERRET, PLLC
12
Counsel for Appellant
TBN: 240429432 47
11200 Broadway, Suite 2743
Pearland, Texas 77584
Phone: 281-764-7071
Fax: 281-764-7071
Email: kyle@verretlaw.com
CERTIFICATE OF SERVICE
I certify that a true and correct copy of the foregoing Brief for Appellant was
served on the Counsel for the Appellee, David Bosserman, at the Criminal District
Attorney’s Office of Brazoria County, Texas, by service through electronic filing on
this 20th day of April, 2015.
/s/Joseph Kyle Verret
Joseph Kyle Verret
TBN: 2402932
CERTIFICATE OF WORD COUNT
I do hereby certify that the total word count for this document is 2,871
excluding those parts specifically excluded in Texas Rule of Appellate Procedure
9.4(i)(1) which is less than 15,000 words allowed per Texas Rule of Appellate
Procedure 9.4.
/s/Joseph Kyle Verret
Joseph Kyle Verret
TBN: 2402932
13