Opinion
No. 06-17-00166-CR
01-31-2018
ALEXANDER JOHNSON, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 6th District Court Red River County, Texas
Trial Court No. CR02104 Before Morriss, C.J., Moseley and Burgess, JJ.
Memorandum Opinion by Chief Justice Morriss MEMORANDUM OPINION
After Alexander Johnson pled guilty to possession of a controlled substance in a drug-free zone, the trial court found him guilty, sentenced him to ten years' imprisonment, assessed him a fine of $1,000.00 and court costs of $847.50, and ordered restitution of $140.00. The trial court then suspended the sentence and placed Johnson on community supervision for five years. Three years later, his community supervision was revoked when the trial court found true the State's allegations that Johnson had violated its conditions by failing to avoid the use of controlled substances. In its judgment revoking community supervision, the trial court sentenced Johnson to eight years' imprisonment and assessed court costs of $1,870.50. In his sole issue on appeal, Johnson challenges the trial court's assessment of $337.50 in attorney fees that were included in the court costs, arguing that the trial court made an implied finding that he was indigent and that there is insufficient evidence to show he is able to pay the fees of his court-appointed attorney. We find that Johnson has forfeited his complaint regarding the assessment of attorney fees. However, because of certain inaccuracies in the judgment revoking community supervision, we will modify the judgment and affirm the trial court's judgment, as modified.
See TEX. CODE CRIM. PROC. ANN. art. 26.05(g) (West Supp. 2017) (requiring a determination by the trial court that a defendant has financial resources to pay in whole or in part the costs of a court-appointed attorney before it may order the defendant to pay these as court costs).
In its original judgment of conviction, entered on May 19, 2014, the trial court assessed Johnson court costs of $847.50 and incorporated its order imposing conditions of community supervision into the judgment. The order imposing conditions of community supervision required Johnson to pay, inter alia, courts costs of $460.00, a Crime Stoppers fee of $50.00, and court- appointed-attorney fees of $337.50 as a condition of his community supervision. Johnson signed an acknowledgment affirming that he had received a copy of the order. Johnson did not appeal that judgment. In its judgment revoking community supervision entered on August 14, 2017, the trial court assessed Johnson court costs of $1,870.50. The certified bill of costs shows that included in the costs of court are criminal fines of $1,000.00 and court-appointed attorney fees of $337.50.
A claim of insufficient evidence to support imposition of court-appointed attorney fees is reviewable on direct appeal. Mayer v. State, 309 S.W.3d 552, 556 (Tex. Crim. App. 2010). The record in this case shows that the court-appointed attorney fees of $337.50 included in the costs were charged for the services of Johnson's court-appointed attorney in the original proceeding that resulted in his suspended sentence and placement on community supervision. Those attorney fees were included in the court costs assessed in the original judgment, as reflected in the order imposing conditions of community supervision and which Johnson acknowledged receiving. Thus, Johnson was aware at the time of the original judgment that the requirement that he pay court costs included the cost of his court-appointed attorney fees. See Wiley v. State, 410 S.W.3d 313, 320-21 (Tex. Crim. App. 2013). Therefore, any challenge to the sufficiency of evidence to support the assessment of attorney fees was required to be asserted in a direct appeal of the original judgment. Id. By choosing not to appeal the original judgment, Johnson forfeited his claim, and he may not revive it in an appeal from the revocation proceeding. Id. at 321. Therefore, we overrule Johnson's sole issue.
However, because the record does not support some of the recitations in the judgment revoking community supervision, we will modify the trial court's judgment. We have the authority to modify the judgment to make the record speak the truth when the matter has been called to our attention by any source. 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.
First, under the heading "Plea to Motion to Revoke," the judgment states, "TRUE." However, the transcript of the revocation hearing shows that Johnson pled "not true." Therefore, we will modify the judgment to reflect that Johnson's plea to the motion to revoke was "not true." Next, the judgment recites that Johnson was assessed $1,870.50 in court costs. However, the certified bill of costs shows that included in these costs was the criminal fine of $1,000.00 assessed in the original judgment of conviction. A fine is a separate obligation from the costs that may be imposed by the trial court in its judgment. See TEX. CODE CRIM. PROC. ANN. art. 42.15(a) (West Supp. 2017) ("When the defendant is fined, the judgment shall be that the defendant pay the amount of the fine and all costs to the state."). Therefore, we will modify the judgment to recite an assessment of a $1,000.00 fine and $870.50 in costs.
For the reasons stated, we modify the trial court's judgment revoking community supervision to recite that Johnson pled "NOT TRUE" to the motion to revoke, an assessment of a fine in the amount of $1,000.00, and an assessment of costs in the amount of $870.50. As modified, we affirm the judgment of the trial court.
Josh R. Morriss III
Chief Justice Date Submitted: January 23, 2018
Date Decided: January 31, 2018 Do Not Publish