Opinion
No. 06-18-00030-CR
06-06-2018
DARIN GLYN CRITES, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 6th District Court Lamar County, Texas
Trial Court No. 27251 Before Morriss, C.J., Moseley and Burgess, JJ.
Memorandum Opinion by Justice Burgess MEMORANDUM OPINION
After a jury in Lamar County found Darin Glyn Crites guilty of evading arrest or detention in a vehicle, the trial court assessed his punishment at ten years' confinement in prison, but suspended his sentence and placed him on community supervision for a period of five years. The trial court also assessed attorney fees and court costs against Crites. In his sole point of error, Crites contends there was insufficient evidence to sustain a finding that Crites had the ability to pay court costs and attorney fees. We agree and modify the trial court's judgment to delete the assessment of $350.00 in attorney fees. We affirm the trial court's judgment, as modified.
I. Background
On August 4, 2017, the trial court entered an order appointing a trial attorney to represent Crites. On that same day, the trial court entered an "order for indigent defendant to offset cost of legal services provided by this county during the pendency of charge." The order found that the cost of legal services provided to Crites in the amount of $350.00 was "reasonable and based on his County's flat fee schedule." The order continued, "[Crites], while indigent, has the ability to pay $350.00 of total cost of the legal services provided as of this date." It also contained a payment schedule ordering Crites to pay $50.00 every two weeks, beginning on August 18, 2017, until such time as the amount had been paid in full.
The order stated, "[Crites] . . . , having made affidavit that he/she is too poor to employ counsel for his/her defense and having requested the appointment of same, . . . a practicing attorney at this bar . . . is hereby appointed to represent [Crites] in this cause."
A jury trial commenced on January 8, 2018, and resulted in a guilty verdict against Crites. In the judgment of conviction, the trial court assessed $538.00 in court costs and attorney fees. In addition, a January 8, 2018, order suspending Crites' sentence and placing him on community supervision showed that $150.00 of those costs were attributable to the balance of Crites' court-appointed trial counsel. On that same day, the District Clerk of Lamar County prepared a bill of costs. The following day, the clerk prepared an amended bill of costs, indicating that Crites had been ordered to pay $350.00 in attorney fees and that there remained a balance of $150.00.
On April 16, 2018, the clerk submitted a sworn affidavit stating the following payments had been made to the clerk's office: $50.00 on August 18, 2017; $50.00 on September 6, 2017; and $100.00 on September 27, 2017.
On appeal, Crites contends that there was insufficient evidence to support a finding that he had the ability to pay the assessed costs, including the attorney fees. In response, the State maintains that sufficient evidence existed to support the trial court's award of court costs, including the attorney fees.
II. Discussion
"The Due Process Clause of the United States Constitution prohibits a state from denying, solely because of inability to pay, access to its courts." Allen v. State, 426 S.W.3d 253, 258 (Tex. App.—Texarkana 2013, no pet.) (citing Boddie v. Connecticut, 401 U.S. 371, 374 (1971); Griffin v. Illinois, 351 U.S. 12, 18 (1956)). The United States Supreme Court has held that an indigent defendant may not be charged for the assistance of appointed counsel at trial, Gideon v. Wainwright, 372 U.S. 335 (1963), for counsel on the first direct appeal as of right, Douglas v. California, 372 U.S. 353 (1963), or for a trial transcript or for filing a notice of appeal, Griffin v. Illinois, 351 U.S. 12 (1956).
This does not mean, however, that some court costs cannot be recovered. Allen, 426 S.W.3d at 258. A defendant's ability to pay is not relevant with respect to legislatively mandated court costs. Owens v. State, 352 S.W.3d 542, 546 (Tex. App.—Amarillo 2011, no pet.). A trial court can order an indigent defendant to pay legislatively mandated court costs provided payment is not demanded before the trial court proceedings have concluded. Allen, 426 S.W.3d at 259.
Aside from the trial court's assessment of attorney fees in the amount of $350.00, its assessment of legislatively mandated court costs was not in error.
Moreover, a trial court has the authority to order a defendant to pay the attorney fees of appointed counsel if it determines that the defendant has the resources "to offset in part or in whole the costs of the legal services provided . . . ." TEX. CODE CRIM. PROC. ANN. art. 26.05(g) (West Supp. 2017). Once a defendant has been found to be indigent, however, he or she is presumed to continue in that status, for the purposes of assessing attorney fees, unless there is evidence of a material change in his or her financial circumstances. TEX. CODE CRIM. PROC. ANN. art. 26.04(p) (West Supp. 2017); Mayer v. State, 309 S.W.3d 552, 557 (Tex. Crim. App. 2010).
Article 26.04(p) states,
A defendant who is determined by the court to be indigent is presumed to remain indigent for the remainder of the proceedings in the case unless a material change in the defendant's financial circumstances occurs. If there is a material change in financial circumstances after a determination of indigency or nonindigency is made, the defendant, the defendant's counsel, or the attorney representing the state may move for reconsideration of the determination.TEX. CODE CRIM. PROC. ANN. art. 26.04(p).
In regard to the assessment of attorney fees in cases of indigency, the Court of Criminal Appeals explained in Mayer,
Specifically, article 26.05(g) provides that, if the trial court determines that a defendant has the financial resources that enable him to offset in whole or in part the costs of the legal services provided, the court shall order him to pay, as court
costs, the amount that it finds the defendant is to pay. Thus, the defendant's financial resources and ability to pay are explicit critical elements in the trial court's determination of the propriety of ordering reimbursement of costs and fees.Mayer, 309 S.W.3d at 556 (emphasis added). Moreover, a finding under Article 26.05(g) must be supported by sufficient evidence. Id.
Here, the record clearly establishes Crites' indigence. Nevertheless, the trial court entered an order requiring him to offset a portion of the attorney fees. In addition, Crites' judgment of conviction included an assessment of attorney fees, and the trial court ordered Crites to pay attorney fees in its order suspending his sentence and placing him on community supervision. However, we find no evidence in the record establishing that Crites had the ability to pay, in whole or in part, the attorney fees that were assessed in the trial court's orders or in the judgment of conviction against him. Therefore, it was error for the trial court to include an award of attorney fees against Crites.
On July 17, 2017, Crites provided the trial court with an application for a court-appointed attorney. In his application, Crites stated that he incurred monthly expenses in the amount of $1,145.00, that he was unemployed, and that he had no assets or income.
The State contends that, because Crites made three payments toward the assessed attorney fees, there was sufficient evidence to show he had the ability to pay the fees. We find the State's argument to be meritless. After making the determination that Crites was indigent, in order to assess attorney fees against him, the trial court was tasked with making a determination that Crites had the ability to pay attorney fees. There exists no evidence in the record on which the trial court could have based a finding that Crites had the ability to pay, in whole or in part, the assessed attorney fees.
"In the alternative, the State brings a cross-issue/point of error: this Court should remand [this cause] to the trial court for further proceedings, see TEX. R. APP. P. 43.2(d), and should give it the opportunity to comply with Article 42.15(a-1) of the Texas Code of Criminal Procedure . . . ." Texas Code of Criminal Procedure Article 42.15(a-1), which became effective on September 1, 2017, states:
(a-1) Notwithstanding any other provision of this article, during or immediately after imposing a sentence in a case in which the defendant entered a plea in open court as provided by Article 27.13, 27.14(a), or 27.16(a), a court shall inquire whether the defendant has sufficient resources or income to immediately pay all or part of the fine and costs. If the court determines that the defendant does not have sufficient resources or income to immediately pay all or part of the fine and costs, the court shall determine whether the fine and costs should be:
TEX. CODE CRIM. PROC. ANN. art. 42.15(a-1) (West 2018).(1) required to be paid at some later date or in a specified portion at designated intervals;
(2) discharged by performing community service under, as applicable, Article 43.09(f), Article 45.049, Article 45.0492, as added by Chapter 227 (H.B. 350), Acts of the 82nd Legislature, Regular Session, 2011, or Article 45.0492, as added by Chapter 777 (H.B. 1964), Acts of the 82nd Legislature, Regular Session, 2011;
(3) waived in full or in part under Article 43.091 or 45.0491; or
(4) satisfied through any combination of methods under Subdivisions (1)-(3).
The language of Article 42.15(a-1) states specifically that, "during or immediately after imposing sentence . . . , a court shall inquire whether the defendant has sufficient resources or income to immediately pay all or part of the fine and costs." Id. In this case, the time for such an inquiry has passed. Moreover, to the extent the trial court assessed the attorney fees, we have concluded that they were not authorized. Accordingly, remand is not necessary to determine whether Crites can immediately pay the assessment of attorney fees as court costs. Instead, we will modify the trial court's judgment to delete the imposition of attorney fees for court-appointed counsel because the record demonstrates that Crites was indigent, and the trial court had no evidentiary basis on which to make a determination that Crites was able to pay the fees.
We sustain Crites' sole point of error.
III. Conclusion
We modify the trial court's judgment to delete the assessment of $350.00 attorney fees and affirm the trial court's judgment, as modified.
Ralph K. Burgess
Justice Date Submitted: May 22, 2018
Date Decided: June 6, 2018 Do Not Publish