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concluding that even though a condition of appellant's community supervision required payment of court-appointed attorney's fees, at the time of adjudication evidence was insufficient to support the trial court's assessment of those fees as court costs
Summary of this case from Wiley v. StateOpinion
No. 07–10–0201–CR.
2012-07-10
Paul David WOLFE, Appellant, v. The STATE of Texas, Appellee.
John Bennett, for Paul David Wolfe. Randall C. Sims, for The State of Texas.
John Bennett, for Paul David Wolfe. Randall C. Sims, for The State of Texas.
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
OPINION
PATRICK A. PIRTLE, Justice.
On September 11, 2007, Appellant, Paul David Wolfe, plead guilty and was placed on five years deferred adjudication for the offense of aggravated assault.
At that time the court awarded his court-appointed attorney a fee of $400. Two months later, the State filed a motion to proceed and on January 29, 2008, the trial court amended the order of deferred adjudication to include a requirement that Appellant complete a substance abuse program. At that time the trial court awarded his court-appointed attorney an additional fee of $400. Two years later the State filed another motion to proceed and on April 27, 2010, following a plea of true, the trial court adjudicated Appellant guilty and assessed his sentence at ten years confinement. That same day the trial court awarded his court-appointed attorney an additional fee of $825. On May 5, 2010, the trial court signed a written judgment ordering Appellant to “pay all fines, court costs, and restitution as indicated above.” The summary portion of the judgment contains the statement: “Court Costs: $ see attached.” The attachment, as reflected in the Clerk's Record, is a Bill of Costs dated May 10, 2010.
SeeTex. Penal Code Ann. § 22.02(a)(2) (West 2011).
It includes entries for “attorney fees (court appointed) $1,625” and “sheriff fees $196.74.” Through four issues, Appellant challenges both of these fees. We modify the judgment and, as modified, affirm.
The attachment was not prepared until five days after the judgment was signed. Although we will address the attachment as a part of the trial court's judgment, this opinion should not be read as approving the procedure of adding an attachment to an already signed document.
Analysis
By issues one through three, he challenges the taxation of court-appointed attorney's fees. We will address issues one through three together.
Court–Appointed Attorney's Fees
Concerning the assessment of court appointed attorney's fees, Appellant asserts: (1) the fees were improperly assessed because there was no finding by the trial court that he had the ability to pay all or any part of the fees assessed, (2) the record is devoid of any evidence showing he is able to pay all or any part of the fees assessed, and (3) there is insufficient evidence to sustain the imposition of the $825 in attorney's fees awarded after the adjudication of guilt and assessment of sentence. In response to Appellant's first two issues, the State contends that because he failed to immediately appeal the $400 in attorney's fees awarded following his original plea bargain, this Court lacks jurisdiction and Appellant should not be heard to complain about those fees at this time. As for the remaining portion of the attorney's fees, totaling $1,225, the State does not argue the jurisdictional issue and it candidly agrees that these fees should be deleted from the judgment. As to the third issue, while the State contends there is sufficient evidence to sustain the amount of the attorney's fees awarded after the revocation of Appellant's deferred adjudication, it candidly concedes there is insufficient evidence pertaining to his ability to pay, and it agrees that he should not be ordered to pay those fees. (Emphasis added).
By now, it is well established that in order to assess court-appointed attorney's fees in a judgment, a trial court must determine that the defendant has financial resources that enable him to offset in part or in whole the costs of legal services provided. SeeTex.Code Crim. Proc. Ann. art. 26.05(g) (West Supp.2011). See also Mayer v. State, 309 S.W.3d 552, 555–56 (Tex.Crim.App.2010); Armstrong v. State, 340 S.W.3d 759, 765–66 (Tex.Crim.App.2011) (holding that a “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.”) Furthermore, not only must the trial court make a determination regarding the defendant's ability to pay, the record must reflect some factual basis to support that determination. Barrera v. State, 291 S.W.3d 515, 518 (Tex.App.-Amarillo 2009, no pet.); Perez v. State, 280 S.W.3d 886, 887 (Tex.App.-Amarillo 2009, no pet.).
Here, the clerk's record reflects that at each stage in this proceeding (the original plea, the modification, and the revocation) the trial court found Appellant to be indigent. Unless a material change in his financial resources occurs, once a criminal defendant has been found to be indigent, he is presumed to remain indigent for the remainder of the proceedings. Tex.Code Crim. Proc. Ann. art. 26.04(p) (West Supp.2011). Therefore, because there is evidence of record demonstrating that Appellant was indigent immediately prior to each time attorney's fees were awarded, we presume that he was indigent at the time of each award.
The State would have us differentiate between fees awarded following the original plea granting community supervision and the fees awarded following the modification and subsequent revocation. Relying upon Olivo v. State, 918 S.W.2d 519, 523 (Tex.Crim.App.1996), the State contends that because no notice of appeal was filed immediately following the original plea, this Court lacks jurisdiction to review the present judgment ordering Appellant to pay those previously ordered attorney's fees. Olivo is simply inapposite. Olivo involved the late filing of a notice of appeal following a conviction for the offense of murder. In Olivo, the Texas Court of Criminal Appeals held that a late filed notice of appeal does not invoke the jurisdiction of an appellate court. But those are not the facts of this case. Appellant is not attempting to appeal the September 2007 order placing him on deferred adjudication, nor is he complaining about the January 2008 amended order adding additional conditions of supervision. Here, Appellant timely filed a notice of appeal contesting the May 5, 2010 judgment ordering him to pay all “fines, court costs, and restitution” as reflected in the “attached” Bill of Costs dated May 10, 2010. While there may be other questions concerning the enforceability of the court's order, jurisdiction is not one of them. Accordingly, the State's jurisdictional argument is rejected.
As to Appellant's “no evidence” argument, the State contends that because a plea agreement is generally held to constitute a contractual agreement, Appellant should not be heard to complain about the “court costs and fees” he bargained for in order to originally obtain deferred adjudication. Various courts of appeals, and even the justices of this Court, have disagreed as to whether a prior agreement to pay attorney's fees pursuant to an order of community supervision (whether deferred adjudication or straight community supervision) should bar an appellant from arguing the insufficiency of the evidence to support a determination of either the amount of attorney's fees or the appellant's financial ability to repay all or part of those fees. See Derby v. State, No. 09–11–0256–CR, 2011 WL 6229679, at *2–3, 2011 Tex.App. LEXIS 9810, at *6–7 (Tex.App.-Beaumont Dec. 14, 2011, no pet.) (not designated for publication) (concluding that even though a condition of appellant's community supervision required payment of court-appointed attorney's fees, at the time of adjudication evidence was insufficient to support the trial court's assessment of those fees as court costs); Armstrong v. State, No. 07–09–0091–CR, 2011 WL 3629191, at *1, 2011 Tex.App. LEXIS 6637, at *3 (Tex.App.-Amarillo Aug. 17, 2011, no pet.) (not designated for publication) (modifying the trial court's judgment to delete the assessment of attorney's fees due to insufficient evidence without making any distinction between attorney's fees the defendant agreed to pay as a condition of his community supervision and additional attorney's fees assessed at adjudication); Marquez v. State, No. 07–10–0366–CR, 2011 WL 1157876, at *2–3, 2011 Tex.App. LEXIS 2307, at *6 (Tex.App.-Amarillo March 30, 2011, no pet.) (mem. op.) (not designated for publication) (Pirtle, J., dissenting) (holding that an agreement to pay attorney's fees as a condition of community supervision is not the same thing as a determination of a defendant's ability to pay those fees, and further finding that the determination of an ability to pay must be made at the time of the assessment at issue). But see Price v. State, No. 10–10–0303–CR, 2012 WL 1435168, at *1–2, 2012 Tex.App. LEXIS 3321, at *4 (Tex.App.-Waco April 25, 2012, no pet. h.) (not designated for publication) (differentiating between attorney's fees levied as a condition of community supervision and attorney's fees associated with revocation proceeding, and holding that appellant “forfeited any complaint” about the fees levied as a condition of community supervision); Reyes v. State, 324 S.W.3d 865, 867–868 (Tex.App.-Amarillo 2010, no pet.) (holding that because the appellant “agreed” to pay attorney's fees of $750 as a condition of his deferred adjudication community supervision, he “waived” any objection to the assessment of those fees upon his subsequent adjudication).
Both Price and Reyes rely heavily upon Speth v. State, 6 S.W.3d 530, 534–35 (Tex.Crim.App.1999), for the proposition that an award of community supervision is akin to a contractual agreement where the conditions of supervision are like “terms of the contract entered into between the court and the defendant.” Speth involved an appeal from an order imposing conditions of community supervision unrelated to the underlying offense. The Fourteenth Court of Appeals reformed the judgment of the trial court to delete some of the challenged conditions of community supervision. The Court of Criminal Appeals granted review to decide “whether a defendant can challenge conditions of probation for the first time on appeal.” Id. at 531. Finding that the granting of community supervision was “profoundly different” from the imposition of a sentence, and that the trial court's decision whether to grant or deny community supervision, and likewise the conditions to be imposed, was “wholly discretionary and nonreviewable,” the Court went on to hold that when complaining about the terms of community supervision, a defendant must complain at trial regarding the conditions he finds objectionable, otherwise those complaints are waived. Id. at 532–34. Because Mr. Speth did not object at trial to the imposition of the challenged conditions, the Court of Criminal Appeals found that the Court of Appeals erred in holding that Speth could complain about those conditions for the first time on appeal.
Here, Appellant is not complaining about terms and conditions of his community supervision.
In fact, he acknowledges and accepts those conditions and does not contest the revocation of his community supervision. What Appellant complains about is the entry of a judgment that is not supported by the evidence. Because that issue is “profoundly different” from the issue involved in Speth, we do not find that precedent to be controlling in this situation.
In his dissent, Justice Campbell disagrees contending that the very substance of Appellant's complaint is the terms and conditions of probation. [Op. at 151].
Furthermore, in Armstrong, after being directly confronted with the State's argument that Speth controlled the disposition of a direct appeal complaining about the insufficiency of the evidence in a post-revocation of community supervision assessment of attorney's fees case, the Court of Criminal Appeals chose to remand the appellant's sufficiency argument to this Court for further consideration. Armstrong, 340 S.W.3d at 764, 766. Accordingly, we conclude that Armstrong at least implicitly rejected the State's Speth argument in facts similar to this case. Because those cases finding that an appellant has forfeited any complaint about attorney's fees assessed as a condition of community supervision have relied upon Speth and its progeny, we find that the better reasoned approach is to differentiate between judgments and orders of community supervision, and to not differentiate between attorney's fees levied as a condition of community supervision and attorney's fees assessed as a part of the revocation proceeding, and we agree with those cases following the approach that an article 26.05(g) determination of ability to pay must be made at the time of the judgment or order at issue.
Furthermore, agreeing to pay attorney's fees as a condition of community supervision and having the actual ability to pay those fees are two entirely different concepts. See Marquez, 2011 WL 1157876, at *2–3, 2011 Tex.App. LEXIS 2307, at *6 (Pirtle, J., dissenting). Our jurisprudence is replete with examples of people who contracted to pay an obligation but were then unable to fulfill that obligation. An agreement to pay and an ability to pay are just not the same issue.
That being said, we find the record in this case contains no evidence that Appellant had the financial resources that would enable him to offset in part or in whole the costs of the legal services provided to him at any time, and we conclude that the judgment assessing court costs in accordance with the Bill of Costs dated on May 10, 2010, is not supported by sufficient evidence and is, therefore, improper. Therefore, we conclude that an assessment of attorney's fees would be improper. See Mayer, 309 S.W.3d at 555–56. No objection is required to challenge the sufficiency of the evidence regarding a defendant's ability to pay. Id. When the evidence does not support an order to pay attorney's fees, the proper remedy is to delete the order. Id. at 557. Accordingly, we sustain Appellant's second and third issues and modify the judgment to delete the requirement that Appellant pay $1,625 in attorney's fees. Review of Appellant's first issue pertaining to a finding by the trial court is thereby rendered unnecessary to the disposition of this appeal. Tex.R.App. P. 47.1.
Sheriff's Fees
By his fourth issue, Appellant contends the evidence was insufficient to support $171.94 of the $196.74 assessed as sheriff's fees. After Appellant filed his brief, apparentlyat the request of the State, a supplemental clerk's record was filed containing the following documents: (1) warrant of arrest or capias, signed May 21, 2007, executed June 1, 2007; (2) precept to serve a certified copy of the indictment, issued June 8, 2007, executed June 12, 2007; (3) alias capias, issued December 13, 2007, executed December 31, 2007; (4) precept to serve a certified copy of the motion to proceed, issued December 6, 2007, executed January 2, 2008; (5) defendant's application for issuance of a subpoena, filed January 16, 2008; (6) subpoena commanding Kim Berlin to appear as a witness, issued January 16, 2008, served January 19, 2008 (reflecting “Fee for Summoning $5.00” and “Fee for Mileage $1.74”); (7) alias capias, issued November 25, 2009, executed December 20, 2009; (8) precept to serve a certified copy of motion to proceed, issued November 25, 2009, executed December 21, 2009; and, (9) appearance bond, filed February 3, 2010.
Without the necessity of pronouncement in open court, or inclusion in the written judgment, Weir v. State, 278 S.W.3d 364, 367 (Tex.Crim.App.2009), and irrespective of the defendant's ability to pay, Williams v. State, 332 S.W.3d 694, 700 (Tex.App.-Amarillo 2011, pet. denied), a person convicted of a criminal offense shall pay the statutorily mandated fees found in section 102.021 of the Texas Government Code. Those fees include “fees for services of peace officer,” which specifically include $50 for executing or processing an issued arrest warrant or capias,
.Tex. Gov't Code Ann. § 102.021(3)(B) (West Supp.2011).
.Tex. Gov't Code Ann. § 102.021(3)(C) (West Supp.2011).
$10 for taking and approving a bond,
.Tex. Gov't Code Ann. § 102.021(3)(D) (West Supp.2011).
and $0.29 per mile for mileage for certain services performed.
.Tex. Gov't Code Ann. § 102.021(3)(E) (West Supp.2011).
.Tex. Gov't Code Ann. § 102.021(3)(I) (West Supp.2011).
Based upon the record, we conclude the evidence was sufficient to support the assessment of the sheriff's fees contained in the Bill of Costs. Accordingly, we overrule Appellant's fourth issue.
Conclusion
The judgment of the trial court is modified to add the following provision at page 2 beneath the heading “Furthermore, the following special findings or orders apply”: “As used herein the term ‘court costs' does not include court-appointed attorney's fees.” As modified, the judgment is affirmed. CAMPBELL, J., concurring and dissenting.
JAMES T. CAMPBELL, Justice, concurring and dissenting.
The majority's opinion is correct in all respects but one. I join in the opinion's discussion and action with regard to the $400 attorney's fees assessed against appellant Paul David Wolfe after the January 2008 modification of his terms of community supervision and the $825 attorney's fees assessed him after the April 2010 revocation of his community supervision, adjudication of guilt and sentencing. The majority properly modifies the trial court's judgment to eliminate those fees, because the record contains no evidence appellant had the ability to offset the fees in whole or in part. Tex.Code Crim. Proc. Ann. art. 26.05(g) (West Supp.2011); Mayer v. State, 309 S.W.3d 552, 556 (Tex.Crim.App.2010). I agree entirely also with the majority's discussion and disposition of appellant's fourth issue, concerning the sheriff's fees.
My difference with my colleagues concerns appellant's ability to challenge, at this time, the $400 in attorney's fees assessed against him in September 2007 on the occasion of his original plea hearing and placement on deferred-adjudication community supervision.
On his indictment in May 2007, appellant asserted his indigence and was appointed counsel. Pursuant to a plea bargain agreement, he plead guilty and received deferred-adjudication community supervision. A condition of the community supervision order required that appellant pay all court costs including the fee of his appointed counsel. The clerk's record contains a bill of costs issued in September 2007 that lists court-appointed attorney's fees of $400.
The majority is correct that Armstrong similarly involved a bill of costs containing attorney's fees assessed on an original plea hearing, a later modification of the terms of community supervision and a later revocation, adjudication and sentencing. Armstrong v. State, 340 S.W.3d 759, 761–62 (Tex.Crim.App.2011). The majority is correct also that, on remand from the Court of Criminal Appeals, the same panel of this court found that none of the attorney's fees were properly assessed because there was no evidence of Armstrong's ability to repay them at any point in the proceedings. We modified the judgment to delete all the attorney's fees assessed against him, including those he agreed to pay as a condition of his original community supervision. Armstrong v. State, 2011 WL 3629191, 2011 Tex.App. Lexis 6637 (Tex.App.-Amarillo Aug. 17, 2011, no pet.) (mem. op.) (not designated for publication). On further consideration, I now believe we erred in doing so.
In Armstrong, the Court of Criminal Appeals concluded that on direct appeal of his criminal conviction Armstrong was entitled to review of his claim that insufficient evidence supported the required reimbursement of court-appointed attorney's fees mandated by the clerk's bill of costs issued pursuant to article 103.001 of the Code of Criminal Procedure. 340 S.W.3d at 766–67;Tex.Code Crim. Proc. Ann. art. 103.001 (West 2006) (describing when cost is payable). It now being clear that courts of appeals are to engage in review of bills of costs
on direct appeal of criminal convictions, the question we confront here is whether such review is subject to, or is exempt from, otherwise settled and generally applicable principles of appellate review.
In Armstrong, the Court of Criminal Appeals quoted the statement of Justice Pirtle that our court is being asked to review bills of costs with increasing frequency. 340 S.W.3d at 763. Justice Pirtle's statement is even more true now than when made, and one might even say our court is being asked to engage in a function of auditing bills of costs. As an example, appellant's fourth issue in this appeal challenges the propriety of $171.94 of $196.74 assessed as sheriff's fees in the clerk's bill of costs.
In Reyes v. State, 324 S.W.3d 865 (Tex.App.-Amarillo 2010, no pet.), we found that principles set out in Speth v. State, 6 S.W.3d 530, 534–35 (Tex.Crim.App.1999), precluded an appellant from challenging the sufficiency of evidence supporting reimbursement of attorney's fees to which he had agreed as a condition of his deferred-adjudication community supervision. 324 S.W.3d at 867–68;see Marquez v. State, No. 07–10–0366–CR, 2011 Tex.App. Lexis 2307 (Tex.App.-Amarillo March 30, 2011, no pet.) (mem. op.) (not designated for publication) (similar holding). In this present case, consistent with appellant's application for community supervision, in which he represented he would reimburse the county for compensation paid his appointed counsel, the court's 2007 order deferring adjudication and placing appellant on community supervision ordered him to pay all court costs including the fee of his court-appointed attorney. If applicable to appellant, Speth would seem to say that by entering such a transaction, without objection, appellant affirmatively waived any complaint over the assessment of attorney's fees for the 2007 proceedings. Speth, 6 S.W.3d at 534–35;Price v. State, No. 10–10–0303–CR, 2012 WL 1435168, at *1–2, 2012 Tex.App. Lexis 3321, at *2–5 (Tex.App.-Waco Apr. 25, 2012, n.p.h.) (mem. op.) (not designated for publication) (following Speth and holding defendant should have complained to trial court about condition of community supervision obligating payment of court-appointed attorney's fees at time condition was imposed and by not complaining he affirmatively accepted condition and forfeited any complaint).
The majority finds Speth does not control the issue, asserting appellant is not complaining about the terms and conditions of his community supervision. Wolfe v. State, 377 S.W.3d 141, 145–46 (Tex.App.-Amarillo 2012, no pet.) (citing Speth, 6 S.W.3d at 532–34). But it seems to me the substance of appellant's complaint is exactly that, a complaint about the condition of his community supervision that he repay the $400 attorney's fees, a complaint based on an insufficiency of evidence he had the ability to repay that amount. See Mayer, 309 S.W.3d at 558 n. 3 (Keasler, J., dissenting) (citing Speth, 6 S.W.3d at 531 n. 1, for proposition imposition of probation conditions is not appropriate for sufficiency review); Speth, 6 S.W.3d at 534 n. 8 (citing Tex.Code Crim. Proc. Ann. art. 42.12 § 11(b), and pointing out defendant can affirmatively waive complaint even to prohibited probation terms by entering into probation containing such terms, without objection).
Under other generally-applied principles, if appellant wished to complain of attorney's fees taxed against him through the 2007 order of deferred-adjudication community supervision, he was required to raise the issue in a timely-filed appeal of that order.
Manuel v. State, 994 S.W.2d 658, 661–62 (Tex.Crim.App.1999) (defendant placed on deferred adjudication community supervision must challenge the order when community supervision is imposed, not after revocation of community supervision); Webb v. State, 20 S.W.3d 834, 835–36 (Tex.App.-Amarillo 2000 no pet.). But appellant did not raise the issue until the present appeal following his 2010 adjudication. To the extent, then, that his notice of appeal was intended to reach the 2007 order, it was untimely. Tex.R.App. P. 26.2(a). In the absence of a timely-filed notice of appeal, our jurisdiction is not invoked. Olivo v. State, 918 S.W.2d 519, 523 (Tex.Crim.App.1996) (on an appellant's defective attempt to perfect appeal court of appeals lacks jurisdiction and must dismiss the case); Sepeda v. State, No. 07–08–0385–CR, 2010 WL 547090, at *2, 2010 Tex.App. Lexis 1132, at *8 (Tex.App.-Amarillo Feb. 17, 2010, pet. denied) (mem. op.) (not designated for publication) (finding no jurisdiction to review, on direct appeal of judgment of conviction, portion of court-appointed attorney's fees ordered paid when defendant was placed on deferred-adjudication community supervision).
The record contains appellant's “waiver of appeal after sentence has been imposed in accordance with plea bargain agreement,” signed by appellant and his counsel at the time appellant's adjudication was deferred. Accordingly, the trial court's certification following the deferral of adjudication states appellant had no right of appeal and he waived the right of appeal. See Tex.R.App. P. 25.2(a)(2); Hargesheimer v. State, 182 S.W.3d 906, 913 (Tex.Crim.App.2006) (holding in plea bargain case for community supervision, plea bargain is complete at time defendant enters plea of guilty in exchange for deferred-adjudication community supervision).
The majority finds Olivo inapposite because it involved a late notice of appeal and because, the majority says, appellant is not “attempting to appeal the September 2007 order placing him on deferred adjudication.” Wolfe, 377 S.W.3d at 144. But, again, it seems to me the substance of his complaint actually is directed at the September 2007 order. Appellant is attempting to appeal the obligation imposed on him to repay the 2007 attorney's fees, asserting there is insufficient evidence he had the ability to do so, and that obligation was imposed in the September 2007 order. A characterization of that obligation as arising from the May 2010 judgment, making his appeal of it timely, seems artificial.
By its conclusion that no question of this court's jurisdiction is raised by appellant's appeal, the majority may be using the term “jurisdiction” in the sense of the court's power to hear and determine a case. We lack jurisdiction under Olivo to hear untimely-filed appeals because our jurisdiction has not been legally invoked. See Olivo, 918 S.W.2d at 523.
The Court of Criminal Appeals' Armstrong opinion contains a reference to Speth and Reyes, in a paragraph of the opinion describing the arguments made by the State. 340 S.W.3d at 764. The opinion contains no further reference to either case, however, and the Court remanded Armstrong's evidentiary-sufficiency argument to this court, leading my colleagues to infer that the Court implicitly rejected the State's contention that Speth has application to our review of attorney's fees listed in bills of cost issued after revocation of community supervision. See Derby v. State, No. 09–11–0256–CR, 2011 WL 6229679, 2011 Tex.App. Lexis 9810 (Tex.App.-Beaumont Dec. 14, 2011, no pet.) (mem. op.) (not designated for publication) (following Armstrong, and also making reference to State's argument in that case; even though condition of appellant's community supervision required repayment of court-appointed attorney's fees, because no evidence supported assessment of these fees in judgment on revocation, judgment was modified to delete amount of attorney's fees).
I now regard that view as reflecting an overly-broad reading of Armstrong. I do not read Armstrong as negating the application of Speth,Manuel or Olivo in the analysis of challenges to assessment of attorney's fees imposed as a condition of community supervision on direct appeal following revocation, even when that challenge is brought to fees assessed only in a certified bill of costs. See Leonard v. State, –––S.W.3d ––––, –––– – ––––, No. PD-0551-10, 2012 WL 715981 (Tex.Crim.App.2012) (citing Speth ).
Accordingly, I would dismiss appellant's challenge of attorney's fees ordered repaid as a condition of community supervision in 2007. I would modify the judgment to limit the amount of court-appointed attorney's fees taxed to appellant as a cost of court to $400, and otherwise affirm the judgment. To the extent the majority modifies the judgment by addressing the 2007 attorney's fees, I respectfully dissent.
ORDER DENYING MOTION FOR EN BANC REHEARING
PER CURIAM.
On this day came on to be heard the Motion for Rehearing En Banc filed the 6th day of July, 2012. At the request of a justice of this court, a vote was held to determine whether the case should be reheard en banc. Tex.R.App. P. 41.2(c). A majority of the court having decided to deny the motion, the motion is hereby denied.
It is so ordered.
Dissent from Denial of Motion for Rehearing En Banc
BRIAN QUINN, Chief Justice.
I respectfully dissent from the decision to deny the motion for rehearing en banc of the panel opinion in Wolfe v. State, No. 07–10–0201–CR, 2012 Tex.App. Lexis 5368 (Tex.App.-Amarillo July 6, 2012, no pet. h.). The request was made sua sponte pursuant to Texas Rule of Appellate Procedure 41.2(c) due to my conclusion that the Court of Criminal Appeals' decision in Armstrong v. State, 340 S.W.3d 759 (Tex.Crim.App.2011) did not overrule this court's decision in Reyes v. State, 324 S.W.3d 865 (Tex.App.-Amarillo 2010, no pet.).
For the foregoing reason, I believe that reconsideration en banc was needed and respectfully dissent from the decision to deny same.