Opinion
NO. 09-11-00673-CR
04-11-2012
KELLY AUCHINCLOSS A/K/A TOBY AUCHINCLOSS A/K/A TOBIUS SPENCER A/K/A TOBY DISSETTE A/K/A TOBIUS WEBB DISSETTE, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 252nd District Court
Jefferson County, Texas
Trial Cause No. 08-03978
MEMORANDUM OPINION
Appellant Kelly Auchincloss appeals from the trial court's revocation of his community supervision and adjudication of guilt. Auchincloss pled guilty to the offense of delivery of a controlled substance. The trial court found the evidence sufficient to find Auchincloss guilty, but deferred finding him guilty. The trial court placed Auchincloss on community supervision for five years and assessed a fine of $1,000. In November 2011, the State filed a motion to revoke Auchincloss's unadjudicated community supervision. Auchincloss pled "true" to four violations of the terms of his community supervision. The trial court found that Auchincloss violated the terms of the community supervision order, revoked Auchincloss's community supervision, and imposed a sentence of 11 years of confinement. The trial court also assessed court costs of $ 587.
Kelly Auchincloss is also known as Toby Auchincloss, Tobius Auchincloss, Tobius Spencer, Toby Dissette, Kelly Webb Auchincloss, and Tobius Webb Dissette.
In his sole issue, Auchincloss argues that the trial court erred in assessing and ordering him to pay the costs and fees of prosecution when he was found to be indigent by the trial court. In support of his position, Auchincloss cites to Armstrong v. State, 340 S.W.3d 759, 767 (Tex. Crim. App. 2011); Mayer v. State, 309 S.W.3d 552 (Tex. Crim. App. 2010); Roberts v. State, 327 S.W.3d 880 (Tex. App.—Beaumont 2010, no pet.) (applying Mayer, we concluded that the evidence was insufficient to show that the defendant's financial circumstances had materially changed, and therefore, we modified the judgment to delete the order to pay attorney fees).
Mayer is inapplicable with regard to an order to pay court costs. In Mayer, the Texas Court of Criminal Appeals concluded that, "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." 309 S.W.3d at 556. However, the Court relied upon the statutory language in article 26.05(g) of the Texas Code of Criminal Procedure when it addressed the trial court's authority to order the defendant to reimburse costs and fees of court-appointed legal counsel. The Court of Criminal Appeals upheld the appellate court's finding that the trial court erred in awarding attorney fees under article 26.05(g) when the record did not contain evidence demonstrating the defendant's financial resources to offset the costs of legal services. Id. at 556-57. The Court noted that the trial court had found the defendant indigent before trial as well as two months after trial, thus qualifying him for court-appointed counsel. Id. at 553. After reviewing the record, the lower appellate court concluded it contained no evidence to support the trial court's determination that the defendant possessed the financial resources to pay attorney fees. See id., 557. The Court of Criminal Appeals affirmed that once a defendant is determined by the trial court to be indigent, the defendant is presumed to remain indigent for the remainder of the proceedings unless a material change in the defendant's financial circumstances occurs. Id. at 557.
In answering the question of whether court costs need to be orally pronounced or incorporated by reference into the judgment to be effective, the Court in Armstrong found that attorney fees are more like court costs than they are like a fine. Armstrong, 340 S.W.3d at 767. In so concluding, the Court held that the same rules regarding the necessity for an oral pronouncement apply to attorney fees as to court costs. Id. The Court held that attorney fees, like court costs, need not be orally pronounced to be effective. Id.
Auchincloss essentially argues that the Court's reasoning in Mayer, coupled with its reasoning in Armstrong, supports the conclusion that he should not be required to pay court costs unless the record demonstrates his ability to pay. However, since different codes and provisions govern attorney fees and court costs, we find this argument unpersuasive.
Article 26.05 of the Texas Code of Criminal Procedure governs the compensation of appointed counsel. Tex. Code Crim. Proc. Ann. art. 26.05 (West Supp. 2011). It provides,
[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 that it finds the defendant is able to pay.Id. art. 26.05(g). The Code further provides that once the trial court finds the accused is indigent, the accused is presumed to remain so for the remainder of the proceedings in the case unless a material change in the defendant's financial circumstances occurs. Id. art. 26.04(p). Therefore, if a trial court finds that a defendant is indigent at the outset of trial, some evidence must be presented to the trial court of a change in financial circumstances before attorney fees can be assessed against the defendant. See Mayer, 309 S.W.3d at 556-57; Roberts, 327 S.W.3d at 883-84.
The statute governing court costs differs substantially from the statute authorizing the award of attorney fees. The Government Code provides that a "person convicted of an offense shall pay the following under the Code of Criminal Procedure, in addition to all other costs[.]" See Tex. Gov't Code Ann. § 102.021 (West Supp. 2011) (court costs on conviction) (emphasis added). Section 102.021 makes no reference to the defendant's ability to pay court costs. See id. Article 26.05(g), on the other hand, explicitly conditions the trial court's authority to order a defendant to pay attorney fees on the defendant's ability to pay— "[i]f the [trial] court determines that a defendant has financial resources...[.]" See Tex. Code Crim. Proc. Ann. art. 26.05(g) (emphasis added).
We conclude that section 102.021 of the Government Code governs orders to pay court costs. We overrule Auchincloss's sole issue and affirm the judgment of the trial court.
AFFIRMED.
CHARLES KREGER
Justice
Do not publish Before Gaultney, Kreger, and Horton, JJ.