Opinion
NO. 09-11-00461-CR
03-28-2012
KENNETH EVERETT PORTER, JR., Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 252nd District Court
Jefferson County, Texas
Trial Cause No. 05-95204
MEMORANDUM OPINION
Kenneth Everett Porter, Jr. appeals from the trial court's revocation of his community supervision. In two issues, Porter contends that his sentence is disproportionate and unreasonable and therefore violates both the Eighth Amendment of the United States Constitution and article I, section 13 of the Texas Constitution. We overrule Porter's issues and affirm the trial court's judgment as modified.
Kenneth Everett Porter, Jr. is also known as Kenneth Everett Porter and Kenneth Everett Parker.
Porter was indicted for the offense of unauthorized use of a motor vehicle. Pursuant to a plea bargain agreement, he entered a plea of guilty to the offense. See Tex. Penal Code Ann. § 31.07 (West 2011). The trial court found Porter guilty and assessed punishment at two years of confinement, probated over five years, and assessed a fine of $500. The trial court extended Porter's probation for an additional two years. The State subsequently filed a motion to revoke Porter's community supervision. Porter pled "true" to three violations of the terms of his community supervision. The trial court found that Porter violated the terms of the community supervision order, revoked Porter's community supervision, and imposed a sentence of two years of confinement. The trial court also assessed administrative fees of $3,247.
Excessive Punishment
In reviewing a trial judge's determination as to punishment, we will not overturn a trial judge's decision on punishment absent an abuse of discretion. See Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984). As a general rule, a sentence that is within the range of punishment established by the Legislature will not be disturbed on appeal. Id. Further, the court does not generally consider a punishment that is within the statutory range for the offense excessive, unconstitutionally cruel, or unusual under either the Texas Constitution or the United States Constitution. See Kirk v. State, 949 S.W.2d 769, 772 (Tex. App.—Dallas 1997, pet. ref'd); see also Jackson v. State, 989 S.W.2d 842, 846 (Tex. App.— Texarkana 1999, no pet.).
Unauthorized use of a motor vehicle is a state jail felony, which carries a punishment range of confinement from 180 days to no more than 2 years. See Tex. Penal Code Ann. § 12.35 (West Supp. 2011). Porter's sentence of two years is within the statutory range the Legislature authorized for the crime of unauthorized use of a motor vehicle. See id.
Because amended section 12.35 contains no material changes applicable to this case, we cite to the current version of the statute.
As the record contains no evidence of "sentences imposed for similar offenses on criminals in Texas or other jurisdictions by which to make a comparison[,]" we find that Porter failed to prove that his sentence was grossly disproportionate. See Jackson, 989 S.W.2d at 846.
Based on the record before us, we are unable to conclude that Porter's sentence constitutes a cruel and unusual punishment. We overrule Porter's constitutional challenges to the length of the sentence assessed by the trial court.
Attorney's Fees
In reviewing the record, we note that the administrative fee balance sheet indicates that $600 of the administrative fees charged to Porter is attributable to attorney fees. "A defendant who is determined by the court to be indigent is presumed to remain indigent for the remainder of the proceedings in the case unless a material change in the defendant's financial circumstances occurs." Tex. Code Crim. Proc. Ann. art. 26.04(p) (West Supp. 2011). Further, the trial court has authority to order a defendant to pay, in whole or in part, the costs of appointed counsel, if the court determines that the defendant has financial resources that enable him to offset the costs of his legal services. Id. art. 26.05 (g).
Here, the trial court determined Porter was indigent when it initially appointed him counsel at his plea hearing, and again when it appointed him counsel at his motion to revoke hearing, and again when it appointed him counsel to represent him in this appeal. There is no evidence in the record to support a finding that Porter's financial circumstances materially changed between the date the trial court initially appointed trial counsel and the date it rendered judgment. Id. art. 26.04(p); see also Roberts v. State, 327 S.W.3d 880, 883-84 (Tex. App.—Beaumont 2010, no pet.). Further, there is no determination or finding in the record, that Porter had financial resources that would enable him to pay the appointed attorney fees. Without evidence to demonstrate this ability, the trial court erred in ordering reimbursement of appointed attorney fees. See Mayer v. State, 274 S.W.3d 898, 901-02 (Tex. App.—Amarillo 2008), aff'd, 309 S.W.3d 552 (Tex. Crim. App. 2010). We subtract the $600 in appointed attorney fees from the administrative fees and modify the trial court's judgment to reflect an administrative fee of $2,647. The judgment of the trial court is affirmed as modified.
See Tex. R. App. P. 43.2(b); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex. App.—Dallas 1991, pet. ref'd).
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AFFIRMED AS MODIFIED.
CHARLES KREGER
Justice
Do not publish Before Gaultney, Kreger, and Horton, JJ.