Opinion
No. 06-17-00048-CR
05-31-2017
CHERYL YVETTE BROWN, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 71st District Court Harrison County, Texas
Trial Court No. 16-0076X Before Morriss, C.J., Moseley and Burgess, JJ.
MEMORANDUM OPINION
Cheryl Yvette Brown entered an open plea of guilty to credit card or debit card abuse against an elderly person, a third degree felony. See TEX. PENAL CODE ANN. § 32.31(d) (West 2016). Brown also pled true to the State's enhancement allegation, elevating the punishment range for the offense to that of a second degree felony. The trial court sentenced Brown to fourteen years' imprisonment and ordered her to pay $500.00 in attorney fees for her court-appointed counsel.
On appeal, Brown argues just that the trial court erred in assessing attorney fees against her because (a) she was indigent and (b) the appellate record contains no findings that she had financial resources to pay the attorney fees. Because (1) attorney fees should not be assessed against indigent criminal defendants, we modify the judgment by deleting the assessment of attorney fees. Because (2) the trial court's judgment should correctly reflect the actual degree of offense and the actual plea to the State's enhancement allegation, we further modify the judgment to recite the degree of offense as a third degree felony and the plea to the enhancement allegation as true. We affirm the trial court's judgment, as modified.
(1) Attorney Fees Should Not Be Assessed Against Indigent Criminal Defendants
Under Article 26.05(g) of the Texas Code of Criminal Procedure, a trial court has the authority to order the reimbursement of court-appointed attorney fees only if "the court determines that a defendant has financial resources that enable h[er] to offset in part or in whole the costs of the legal services provided, including any expenses and costs." TEX. CODE CRIM. PROC. ANN. art. 26.05(g) (West Supp. 2016). "[T]he 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" of legal services provided. Armstrong v. State, 340 S.W.3d 759, 765-66 (Tex. Crim. App. 2011) (quoting Mayer v. State, 309 S.W.3d 552, 556 (Tex. Crim. App. 2010)).
Because Brown was indigent and is presumed to remain indigent absent record proof of a material change in her circumstances, the judgment incorrectly ordered Brown to pay $500.00 for court-appointed attorney fees. See TEX. CODE CRIM. PROC. ANN. arts. 26.04(p), 26.05(g) (West Supp. 2016); Mayer v. State, 309 S.W.3d 552, 557 (Tex. Crim. App. 2010); Watkins v. State, 333 S.W.3d 771, 781-82 (Tex. App.—Waco 2010, pet. ref'd). The State concedes this point and asks this Court to modify the trial court's judgment.
We have authority to modify a judgment and affirm it as modified if there is non-reversible error. Ferguson v. State, 435 S.W.3d 291, 294 (Tex. App.—Waco 2014, pet. struck) (comprehensively discussing appellate cases that have modified judgments). Accordingly, we modify the trial court's judgment by deleting the assessment of $500.00 in attorney fees.
(2) The Trial Court's Judgment Should Correctly Reflect the Actual Degree of Offense and the Actual Plea to the State's Enhancement Allegation
We also have the authority to modify the judgment to make the record speak the truth, even if a party does not raise such a problem. TEX. R. APP. P. 43.2; French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992); Rhoten v. State, 299 S.W.3d 349, 356 (Tex. App.—Texarkana 2009, no pet.). "Our authority to reform incorrect judgments is not dependent on the request of any party, nor does it turn on a question of whether a party has or has not objected in trial court; we may act sua sponte and may have a duty to do so." Rhoten, 299 S.W.3d at 356 (citing Asberry v. State, 813 S.W.2d 526, 531 (Tex. App.—Dallas 1991, writ ref'd); see French, 830 S.W.2d at 609.
We notice that the trial court's judgment incorrectly labels the level of Brown's offense and mistakenly omits a plea to the State's enhancement allegation. Therefore, we modify the trial court's judgment to speak the truth.
Credit card or debit card abuse against an elderly person is a third degree felony. TEX. PENAL CODE ANN. § 32.31(d). If it is shown at trial for a third degree felony that the defendant had previously been convicted of another felony, other than a state jail felony, punishment can fall within the range prescribed for a second degree felony. TEX. PENAL CODE ANN. § 12.42(a) (West Supp. 2016). The State's enhancement allegation in this case was used to enhance Brown's punishment range. However, this procedure does not increase the level of the original offense. Additionally, although the record establishes that Brown pled true to the State's enhancement allegation, the trial court's judgment fails to reflect that plea.
Accordingly, we hereby modify the trial court's judgment to reflect the degree of offense as a third degree felony and Brown's plea to the State's enhancement paragraph as true.
We affirm the trial court's judgment, as modified.
Josh R. Morriss, III
Chief Justice Date Submitted: May 26, 2017
Date Decided: May 31, 2017 Do Not Publish