Opinion
NO. 14-14-01025-CR
01-26-2016
CARLOS GALLEGOS-PIEDRA, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 412th District Court Brazoria County, Texas
Trial Court Cause No. 73552
MEMORANDUM OPINION
A jury found appellant Carlos Gallegos-Piedra guilty of driving while intoxicated. The jury assessed punishment of ten years' imprisonment and a fine of $5,000. The trial court signed a judgment on the verdict.
As a threshold matter, we deny the State's request to suspend Texas Rule of Appellate Procedure 42.2(a) and dismiss this appeal. The trial court held a hearing and concluded appellant did not waive his right to appeal after filing his notice of appeal. Turning to the merits, appellant asserts in a single issue there is insufficient evidence to support the portion of the judgment that orders him to pay $3,000 in attorney's fees. The State agrees. Concluding the evidence is insufficient to support the award of attorney's fees, we modify the judgment and affirm it as modified.
BACKGROUND
The facts of the underlying cases are not at issue. We discuss only the facts pertaining to appellant's complaint regarding the judgment.
The judgment orders appellant to pay "all fines, court costs, and restitution." It includes a fine of $5,000 assessed by the jury, court costs of $474, and attorney's fees of $3,000. Appellant challenges only the award of attorney's fees.
The record does not contain an affidavit of indigence for appellant. It does, however, contain orders appointing trial counsel and appellate counsel for him.
ANALYSIS
I. Waiver of appellant's right to appeal
Before turning to appellant's issue, we first consider the State's argument that the appeal should be dismissed because appellant sought to withdraw it. The State requests that we suspend Texas Rule of Appellate Procedure 42.2(a), which provides a straightforward rule for determining when an appellant who has filed a notice of appeal in a criminal case wishes to withdraw it: the appellant must file a motion to dismiss, and both appellant and his attorney must sign it. As explained below, no such motion was filed here, and we decline to suspend the rule because the trial court held a hearing and concluded that based on appellant's testimony, the appeal should continue.
A. Legal standards governing waiver of right to appeal
A defendant charged with a non-capital crime may waive any rights secured to him by law, including the right to appeal. Tex. Code Crim. Proc. Ann. art. 1.14(a) (right to waive rights); id. art. 44.02 (right to appeal); Satterfield v. State, 367 S.W.3d 868, 870 (Tex. App.—Houston [14th Dist.] 2012, pet. ref'd). Waiver is an intentional relinquishment or abandonment of a known right or privilege. Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 1023, 82 L. Ed. 1461 (1938); Garcia v. State, 429 S.W.3d 604, 607 (Tex. Crim. App. 2014) (discussing Johnson). To be effective, the waiver must be intentional, knowing, and voluntary. Ex parte Delaney, 207 S.W.3d 794, 796-97 (Tex. Crim. App. 2006). Where there is conflicting evidence concerning an appellant's waiver of his right to appeal, the court of appeals may deny a motion to dismiss and allow the appeal to proceed. Adams v. State, 911 S.W.2d 171, 172 (Tex. App.—Corpus Christi 1995, no pet.).
B. Appellant has not expressed in this Court a desire to withdraw his appeal
We begin by observing that appellant has not sought in this Court to discontinue his appeal. He filed a brief in April 2015. His brief does not suggest a desire to waive his right to appeal. Further, appellant has not filed a motion for voluntary dismissal. See Tex. R. App. P. 42.2(a).
In that respect, this case is distinguishable from Hartsell v. State, 143 S.W.3d 233 (Tex. App.—Waco 2004, no pet.) (mem. op.) (per curiam), cited by the State. Counsel for Hartsell filed a motion to dismiss under Rule 42.2(a) based on Hartsell's statements that he did not want to appeal. Hartsell refused to sign the motion as required by Rule 42.2(a), however. The court of appeals held that Hartsell's unequivocal expression of his desire to withdraw his appeal justified suspension of Rule 42.2(a)'s signature requirement. See id. at 233-34. Because appellant has not expressed to this Court a desire to withdraw his appeal, Hartsell is inapplicable.
C. Hearing to determine appellant's desire to appeal
Two weeks after the notice of appeal was filed on appellant's behalf, the trial court held a post-conviction hearing at the request of appellant's counsel. Counsel said that after discussing the merits of an appeal with appellant and advising him of the consequences of not appealing, appellant told him he did not want to appeal. Counsel then stated:
Because my Spanish is of an elementary level I asked for this hearing and for Ms. Rivera [the interpreter] to spend time with me and my client discussing what we discussed in jail. Again, he expressed this morning his desire not to appeal. And I would like on the record to, number one, make sure that that's clear. And possibly have this Court discuss with [him] the fact that were he to waive his right to appeal, then any error that occurred during his trial, whether error by the judge, the jury, the prosecutor, or the defense attorney, would be waived forever. That most writs of habeas corpus necessitate an — a defendant appellant first exercising the right to appeal. And if he waives his right to appeal, if he instructs me to stop, then the punishments which this Court has sentenced him to more likely than not will be absolutely final and he'll have no redress if there was error.
Because there is no detriment to him exercising his right to appeal, it causes me grave concern to send a letter to the Court of Appeals saying I want to withdraw my appeal on his behalf.
The trial court confirmed that appellant understood what his lawyer said, then recessed the hearing so appellant, his lawyer, and the interpreter could discuss the matter privately. The court said for appellant to "take however much time you want to be sure that you understand . . . ."
Approximately an hour later, the hearing resumed. Counsel told the court that he and appellant, with the interpreter's assistance, had discussed the effect of an appeal:
We have discussed that the sentences that he received are on the high end of the penalty range and in some cases, like the DWI third, as high as he could get, receiving 10 years on a third degree felony.
We have discussed that a person exercising their right to appeal has no effect on how long they may sit on the sentence for which they are sentenced, that parole may allow him to parole out even if he has an appeal still pending, that the filing, the preparation of the brief and the time that it takes for the pendency of an appeal and for the appellate court to make a decision won't have any effect on the amount of time that he has to sit in prison.
. . .
At one point he expressed an interest in having possibly another attorney hired, and I told him that that would be okay. But to do that would require me starting to do some work on the appeal. And if a new attorney was hired that I will gladly turn over any work I did, the record, my file to the new attorney. But if he has an interest in doing that it's necessary that we continue the appellate process.
After advising appellant of his right to remain silent, the trial court questioned appellant about his desire to continue or withdraw the appeal:
Court: [Y]ou have just heard what [your lawyer] has told the Court. Is that correct?
Appellant: Yes.
Court: And do you want him to stop working on your appeal and abandon all further efforts to appeal your case, which would include notifying the Court of Appeals that you wish to withdraw your appeal? Is that what you want?
Appellant: Yes.
Court: Has anyone forced you or threatened you or made any promises to you to get you to want to abandon your appeal?
Appellant: No, none.
To that point, appellant had been unequivocal in his statements that he did not want to appeal. As the court continued its questions, however, appellant's answers became inconsistent and at times confusing:
Court: And are you making this decision freely, knowingly and voluntarily as your own personal choice?
Appellant: Yes, yes. I'm only — I'm just giving you the word that you saw the video and everything.
Court: I'm sorry. I didn't understand what you said.
Appellant: I'm giving you the word. You saw the video. You have to do what's correct and what you saw and that's all. I don't need to have anyone see that. I don't want anyone to see that, spend any more time and my head and my mind because my head doesn't rest.
Court: His head is at rest?
Appellant: No. My mind is not at ease. It's always thinking about my case.
Court: All right. I want to be clear about something. I appreciate your confidence that I saw it, but you understand I did not make the judgment. The jury made the determination to find you guilty. Do you understand that?
Appellant: Yes, but I would like for you to have the opinion that if the jury was correct in the decision that they made that you also have the right in my case in the punishment.
Court: Well, the jury assessed your punishment. All I did was formally sentence you to what the jury assessed. Now the jury could be wrong. I could have made some mistakes
during the trial which could have had an effect on the jury. Your attorney could have made some mistakes. The State of Texas in its attorney could have made some mistakes which would have had an effect on the jury. Do you understand that?
Appellant: Yes.
Court: And that is why we have an appeals process where a higher court can look at everything that went on during trial to determine whether or not mistakes were made that caused the jury to do what it did. Do you understand that?
Appellant: Yes.
Court: But if you do not allow [your lawyer] to appeal then if there were any errors they can never be brought up and you will serve the sentences that were imposed. Do you understand that?
Appellant: Yes, but I cannot believe that people, that the jury would have said all that.
Court: Well, if that's how you feel it seems to me that you think the jury might have made a mistake. Is that what you're telling me?
Appellant: Yes.
Court: Well, if you believe the jury might have made a mistake why wouldn't you want [your lawyer] to let another court look at everything to see whether or not the higher court agrees with you? Why wouldn't you want to do that?
Appellant: Well, it would be good for them to see the video one more time.
Court: Well, that's not possible under our procedure. The jury has already made its decision. . . . Now if you want [your lawyer] to appeal it is possible for the higher court, which is the appellate court, to see the video and determine
whether or not they think the jury or the Court or some of the lawyers made a mistake. But that's the only way anyone else can see that video again. Do you understand that?
Appellant: Yes, but what you're telling me is a lot of time for me to be waiting for something. I think that for what I did I shouldn't be incarcerated.
Court: But as [your lawyer] told you, and he correctly told you, if you appeal it's not going to have any effect on the number or amount of time that you're going to be sitting because we can't predict how long an appeal takes but you have one sentence that's 15 years. And typically appeals are no more than two or three years. It all depends on the Court. But you will be sitting under your sentence whether or not [your lawyer] appeals. Do you understand that?
. . .
Appellant: Yes, but —
Court: So why do you think that it would delay something if you appeal?
. . .
Appellant: It's just a lot of time. I have to pay all these costs with the Court.
Court: I understand it's a lot of time. I understand it's a lot of money. But do you understand that the only way, the only possible way you can serve, get a lesser sentence or get a lesser fine is if [your lawyer] can appeal and convince the higher court that somebody made an error in your trial? That's the only possible way you can get a shorter sentence. Do you understand that?
Appellant: Yes.
Court: All right. Understanding everything, understanding that the only way you could ever get a shorter sentence is for a new trial, or the only way that you can get lesser fines is for the higher court to order a new trial because of error, and the only way that the higher court can ever consider that is if you allow [your lawyer] to appeal, do you still want [him] to stop and to notify the appeals court that you do not want to appeal? Is that what you want him to do?
Appellant: Well, it's that it's hard for me to trust an attorney. That attorney that took me to trial, the one that took me to trial, I don't want to go forward with this.
. . .
Court: But do you understand [your lawyer] is a different attorney and if somebody made a mistake, whether it's your attorney, the Court, the jury, or the State's attorney, that's his job to point out that. Do you understand that's what he would be doing for you?
Appellant: I would like for another attorney, maybe an attorney from the consulate, another attorney from the outside.
Court: Okay. You have the right to hire any attorney that you want. Do you understand that you have that right?
Appellant: Yes.
Court: But as [your lawyer] said, he needs to start doing work on the appeal because of the time deadlines before your other attorney gets in the case. Do you understand that?
Appellant: Yes.
Court: And do you understand that the only way your new attorneys can pursue this is if [your lawyer] continues with what he's doing now?
Appellant: Yes.
Court: So understanding that, don't you want him to continue with the appeal until you can get your other attorneys in the case?
Appellant: And if that's the way it would be, how much more time would it take?
Court: I have no idea. It's not going to take any more time for the appeal because once the appeal is filed there are time deadlines that the court reporter has to file the notes of the trial. There are time deadlines where [your lawyer] has to file his arguments as to why mistakes were made. There is a time deadline for the State to file the response. All of those are set by the higher court. At any point in time in the process if you retain your counsel or get other counsel to step in they would merely step in for [your lawyer] and [he] has already said that he would withdraw. So it's really not going to take any more time in the appellate process. It will not lengthen it at all. Understanding that — do you understand what I just told you?
Appellant: Yes.
Court: Understanding that, don't you want him to continue the appeal to allow you time to get another lawyer?
Appellant: I cannot continue any more. If that's what you think, you told me the last time that I would get TDC time. And the judge over there will also have to see the video.
Court: I'm sorry. I don't understand.
Appellant: The judge over there will also have to see the video for him to see if it's proper, whatever the jury said.
Court: I'm not sure I understand your answer. You started out by saying no, you do not want to continue. Is that what you told me?
Appellant: Yes. I do not want to continue because, because you told me that it was all a misdemeanor.
Court: Well . . . if I told you it was all a misdemeanor then that would be on the record some place because I do not ever recall telling you that it was a misdemeanor. So if I told you that, that would be on the record and that would be another ground for [your lawyer] to say you have the right to appeal. . . . The second thing you said was something about a judge looking at the video again. If you don't allow [your lawyer] to appeal no judge anywhere, except the Lord in heaven as the judge, will ever see that video again. Do you understand that?
Appellant: But why?
Court: Why is because under our law and procedure unless you allow [your lawyer] to appeal, your cases are finished. No judge will ever see those videos again. The only way, the only way any other judge can see those videos again is if you allow [your lawyer] to appeal your case. So if you want a judge to review the videos he has to continue your appeal. Do you understand that?
Appellant: I am not going to be able to continue this until I see another attorney, an attorney from the outside or the consulate. . . . If you think that that's all, I don't know.
Court: All right, based upon the testimony, while I am not aware of the reference to that [appellant] made to the Court's admonishments to him, I am going to order [his lawyer] to continue the appeal.
D. Appellant did not knowingly waive his right to appeal
1. Appellant vacillated in his desire to appeal
Appellant's statements at the hearing are inconsistent. He unequivocally said several times that he did not want to appeal. He also said several times, however, that he believed his conviction and sentence were erroneous and he wanted another lawyer to review his case. Appellant also complained of his legal representation both at trial and on appeal. He said his trial counsel "made some mistakes," which can be construed as a claim of ineffective assistance of counsel.
Insufficiency of the evidence and ineffective assistance of counsel are both cognizable appellate issues. Appellant's references to these issues at the hearing support the trial court's decision that appellant's attorney should continue the appeal.
2. Appellant did not understand appellate process
Despite the trial court's and counsel's repeated and clear explanations, appellant's statements throughout the hearing indicate he did not understand the appellate process. He wanted the jury to have another opportunity to consider the video. He believed the trial court was required to "do what's right" with respect to his conviction and sentence, despite the jury's findings. Appellant implied he thought an appeal would take too long, but he did not appear to understand that the length of the appeal would have no effect on his sentence. On the whole, appellant's exchange with the trial court supports the trial court's conclusion that appellant did not knowingly relinquish his right to appeal.
The State directs us to four cases in which the court of appeals dismissed the appeal, without a motion to dismiss, because the appellant expressed on the record his desire to stop the appeal. Hendrix v. State, 86 S.W.3d 762 (Tex. App.—Waco 2002, no pet.) (mem. op.) (per curiam); Conners v. State, 966 S.W.2d 108 (Tex. App.—Houston [1st Dist.] 1998, pet. ref'd); Johns v. State, No. 01-09-00052-CR, 2009 WL 3672903 (Tex. App.—Houston [1st Dist.] Nov. 5, 2009, no pet.) (mem. op.) (per curiam) (not designated for publication); Contreras v. State, No. 01-07-00385-CR, 2008 WL 340481 (Tex. App.—Houston [1st Dist.] Feb. 7, 2008, no pet.) (mem. op.) (per curiam) (not designated for publication). Those cases are distinguishable from this case in two respects. First, there was no suggestion in those cases that the appellant raised substantive issues for appeal at the hearing, thereby calling into doubt his expressed desire to withdraw his appeal. Second, the appellant's understanding of the appellate process in those cases was unquestioned, so the court was not called to consider if the appellant knowingly relinquished the right to appeal.
Based on the record before us and the trial court's conclusion, we will not suspend Rule 42.2(a). Because appellant has not filed a motion to dismiss his appeal in this Court, we turn to appellant's issue on appeal.
II. Attorney's Fees
In his sole issue, appellant contends the evidence was insufficient to establish his ability to pay the attorney's fees assessed against him.
A. Legal standards for imposing attorney's fees on indigent defendant
When a trial court determines that a defendant can pay for all or part of the legal services provided to him, it has the authority to order reimbursement of an appointed attorney's fees:
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, 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 that it finds the defendant is able to pay.Tex. Code Crim. Proc. art. 26.05(g). 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 v. State, 309 S.W.3d 552, 556 (Tex. Crim. App. 2010). A defendant whom the court determines is indigent is presumed to remain indigent throughout the proceedings unless his financial circumstances change materially. See Tex. Code Crim. Proc. art. 26.04(p); West v. State, No. 14-13-00896-CR, ___ S.W.3d ___, 2014 WL 6601216, *7 (Tex. App.—Houston [14th Dist.] Nov. 20, 2014, no pet.).
We review the evidence in the light most favorable to the judgment when deciding whether the record contains legally sufficient evidence of the defendant's financial resources and ability to pay. Mayer, 309 S.W.3d at 557. Absent such evidence, the defendant may not be ordered to pay attorney's fees. West, 2014 WL 6601216, at *7.
The record contains no evidence of appellant's financial resources or ability to pay for legal representation. To the contrary, the trial court's appointment of counsel for appellant reflects an implicit finding that appellant was indigent. Id. On this record, therefore, the trial court erred in assessing $3,000 in attorney's fees. The State concedes error on this issue. When the evidence does not support an order to pay attorney's fees, the proper remedy is to delete the order from the judgment. Id. at *7-*8.
Accordingly, we sustain appellant's issue and modify the judgment to remove the assessment of attorney's fees.
CONCLUSION
We modify the judgment to remove the assessment of attorney's fees and affirm as so modified.
/s/ J. Brett Busby
Justice Panel consists of Justices Boyce, Busby, and Brown.
Do Not Publish — TEX. R. APP. P. 47.2(b).