Opinion
NO. 12-17-00075-CR
04-25-2018
BEVAUGHN ROGERS, APPELLANT v. THE STATE OF TEXAS, APPELLEE
APPEAL FROM THE 294TH JUDICIAL DISTRICT COURT VAN ZANDT COUNTY , TEXAS
MEMORANDUM OPINION
Bevaughn Rogers appeals his conviction for attempted aggravated assault with a deadly weapon. In two issues, he challenges the sufficiency of the evidence to support the order that he pay attorney's fees and court costs. We affirm.
BACKGROUND
Appellant was arrested and indicted for aggravated sexual assault with a deadly weapon. In 2014, Appellant entered a negotiated plea agreement for a plea of "guilty" in exchange for a recommended punishment of deferred adjudication community supervision for four years. The trial court accepted Appellant's plea, and in accordance with the agreement, placed Appellant on deferred community supervision for a period of four years.
In 2016, the State filed a motion to adjudicate Appellant's guilt, alleging that in a separate proceeding in Kaufman County, Texas, Appellant pleaded "guilty" to possession of marijuana in violation of the terms of his community supervision. He pleaded "true" to the allegations in the State's motion to adjudicate in this case. The trial court found Appellant guilty of the lesser included offense of attempted aggravated assault with a deadly weapon, revoked his community supervision, and sentenced him to imprisonment for ten years, along with an assessment of a $500.00 fine and $427.50 in restitution. The trial court also assessed court costs against Appellant and ordered that he partially reimburse the county for the legal services he received from appointed counsel. This appeal followed.
ATTORNEY'S FEES
In his first issue, Appellant challenges the sufficiency of the evidence to support the trial court's order that he partially reimburse the county for his court-appointed attorney's fees. Standard of Review and Applicable Law
A trial court has the authority to assess attorney's fees against a criminal defendant who received court-appointed counsel. TEX. CODE CRIM. PROC. ANN. art. 26.05(g) (West Supp. 2017). But once a criminal defendant has been determined to be indigent, he "is presumed to remain indigent for the remainder of the proceedings unless a material change in his financial circumstances occurs." Id. art. 26.04(p) (West Supp. 2017). Before attorney's fees may be imposed, the trial court must make a determination supported by some factual basis in the record that the defendant has the financial resources to enable him to offset in part or in whole the costs of the legal services provided. See Johnson v . State , 405 S.W.3d 350, 354 (Tex. App.—Tyler 2013, no pet.). If the record does not show that the defendant's financial circumstances materially changed, there is no basis for the imposition of attorney's fees. See TEX. CODE CRIM. PROC. ANN. art. 26.04(p); Mayer v. State , 309 S.W.3d 552, 557 (Tex. Crim. App. 2010); Johnson , 405 S.W.3d at 354.
No objection is necessary to preserve a claim that there is no evidence of a defendant's ability to pay attorney's fees. Mayer , 309 S.W.3d at 556. But where such a claim arises from an order originally imposing community supervision, the defendant must bring it in a direct appeal from that order or risk forfeiture. See Wiley v . State , 410 S.W.3d 313, 318 (Tex. Crim. App. 2013). The claim is forfeited if the defendant was aware of the obligation to pay the fees but did not bring the claim in a direct appeal. Riles v. State , 452 S.W.3d 333, 337 (Tex. Crim. App. 2015). Discussion
Appellant argues that the trial court erred in imposing attorney fees following the finding that he was indigent and was appointed counsel. At the outset of the proceedings, Appellant claimed that he was indigent and applied for appointed counsel. In 2009, the trial court found that Appellant was indigent, but that he had financial resources to partially offset the cost of legal services and related expenses. The trial court appointed counsel, but ordered that Appellant contribute $50.00 per month to partially reimburse the county for his counsel's fees and related expenses. The trial court also included this order as part of the terms and conditions of Appellant's pretrial release. In April 2011, counsel filed a motion to withdraw, which the trial court granted.
In May 2011, the trial court appointed new counsel and also found that Appellant was indigent. However, as with prior counsel, the trial court ordered that Appellant contribute $50.00 per month to offset the cost of legal counsel's services and related expenses. In August 2011, Appellant allegedly violated the terms and conditions of his pretrial release by testing positive for alcohol consumption and was subsequently arrested. In April 2012, the trial court amended the terms and conditions of Appellant's pretrial release, incorporating the order that Appellant pay $50.00 per month to partially reimburse the county for the services provided by his lawyer.
In April 2014, the trial court held a hearing concerning the conditions of Appellant's pretrial release. The State offered evidence from Appellant's community supervision officer that Appellant was delinquent in paying his financial obligations, including his attorney's fees. The community supervision officer testified that Appellant was always immaculately dressed and wore several items of expensive jewelry. The State also offered photographs depicting Appellant operating two automobiles and a motorcycle. Appellant claimed that the motorcycle belonged to the builder of Appellant's home, and that Appellant's wife considered buying it. He admitted that he owned two vehicles and that he painted one of them, and added wheels and undercarriage lighting to it, all while being delinquent on his payment obligations. Appellant also admitted that shortly after the county sought further amendments to his pretrial release in 2013, he immediately paid approximately $1,000.00 of his arrearages. He also explained at the hearing that he could meet his financial obligations, and that his wife was opening a restaurant and that he would be assisting with that venture. He testified that he last worked in 2011 as a truck driver, but that he could not renew his commercial driver's license due to a vision problem rendering him partially blind. The trial court found that Appellant had funds to pay his court-appointed attorney's fees in accordance with its orders, yet failed to do so, and that consequently, he violated the terms of his pretrial release. The trial court reset his bail and ordered that he be taken into custody.
In May 2014, Appellant pleaded "guilty" to the lesser included offense of attempted aggravated assault with a deadly weapon. In accordance with a plea agreement, the trial court issued an order deferring a finding of guilt, and placed Appellant on community supervision for four years. Among other things, the trial court ordered that Appellant pay $3,195.00 as reimbursement for his court-appointed attorney. In the terms and conditions of Appellant's community supervision, the trial court required Appellant to pay $90.00 per month for his court costs, fine, and court-appointed attorney's fees. It appears from the record that Appellant thereafter made the payments in accordance with the trial court's order.
In February 2016, the State filed a motion to adjudicate Appellant's guilt and revoke his community supervision. In June 2016, Appellant filed an affidavit of indigency, alleging that he received $325.00 per month as "take home pay" from his employer, which he listed as the "Social Security Office" in Tyler, Texas. He also stated that he received food stamps, Medicaid, and Supplemental Security Income. Separately, Appellant stated that he received $350.00 per month in "unemployment social security benefits." He identified his total gross monthly income as $350.00. Appellant also stated in his affidavit that he owned a vehicle and a home. He identified monthly liabilities of $605.00. The trial court held a hearing where Appellant explained that he received monthly disability payments, and that his family and friends have been helping him. The trial court reappointed Appellant's prior counsel, found that Appellant could partially offset the cost of his appointed counsel, and ordered that he pay $50.00 per month to reimburse the county for those expenses.
The trial court ultimately adjudicated Appellant's guilt, found him guilty, revoked his community supervision, and sentenced him to ten years of imprisonment. In its judgment, the trial court ordered that Appellant pay the remaining balance of $705.52 for his prior court-appointed attorney reimbursement, along with $1,512.00 for his attorney's fees accrued during the motion to adjudicate phase of the case. The trial court also attached an order to withdraw funds from Appellant's inmate trust account to pay his costs, fees, fine, and restitution.
To the extent that Appellant challenges the order that he pay attorney's fees as part of the terms and conditions of his community supervision, he has forfeited this issue by failing to assert it in a direct appeal. See Riles , 452 S.W.3d at 337; Wiley , 410 S.W.3d at 318. With respect to the remainder of the fees, the trial court made express findings throughout the proceedings that Appellant was indigent, but that he was able to pay a portion of his court-appointed counsel fees. Based on the foregoing evidence, the trial court could have reasonably concluded that there was not a material change in circumstances requiring that Appellant be provided court-appointed counsel without reimbursement. See Harris v . State , 468 S.W.3d 248, 263 (Tex. App.—Texarkana 2015, no pet.) (holding evidence sufficient to support finding that defendant was financially able to pay portion of court-appointed counsel fees because she was seemingly untruthful in completing two applications for counsel, but ultimately admitted that she had vehicle and source of income, albeit college grants, and that significant portion of her living expenses and costs associated with the proceedings were covered by her boyfriend and grandmother). In other words, there is a basis in the record to support the trial court's order in its judgment and the attached order to withdraw funds requiring partial reimbursement for Appellant's court-appointed counsel's fees.
Therefore, Appellant's first issue is overruled.
COURT COSTS
In Appellant's second issue, he contends that the trial court erred by imposing unconstitutional court costs. Applicable Law
The imposition of court costs upon a criminal defendant is a "nonpunitive recoupment of the costs of judicial resources expended in connection with the trial of the case." Johnson v. State , 423 S.W.3d 385, 390 (Tex. Crim. App. 2014). When the imposition of court costs is challenged on appeal, we review the assessment of costs to determine if there is a basis for the costs, not to determine if sufficient evidence to prove each cost was offered at trial. Id. The money received is divided among a variety of state government accounts according to percentages dictated by the statute. See TEX. LOC. GOV'T. CODE ANN. § 133.102(e) (West Supp. 2017); Salinas v. State , 523 S.W.3d 103, 106 (Tex. Crim. App. 2017).
In Salinas , the court of criminal appeals held the statute to be unconstitutional with respect to two of these accounts—an account for "abused children's counseling" and an account for "comprehensive rehabilitation." See Salinas , 523 S.W.3d at 105. As a result, the court set forth that any fee assessed pursuant to the statute must be reduced pro rata to eliminate the percentage of the fee associated with these accounts. See id . The court further held that its holding applies only to (1) a defendant who raised the appropriate claim in a petition for discretionary review before the date of the court's opinion, if that petition is still pending on that date and the claim would otherwise be properly before the court on discretionary review or (2) a defendant whose trial ends after the mandate in Salinas issues. See id . at 112-13. Discussion
Before the mandate issued, the Legislature amended Section 133.102(e), effective June 15, 2017, to redirect funds previously allocated to abused children's counseling and comprehensive rehabilitation to the fair defense account. See Act of May 18, 2017, 85th Leg., R.S., ch. 966, § 1, 2017 Tex. Sess. Law Serv. 3917, 3917-18 (West) (current version at TEX. LOC. GOV'T CODE § 133.102(e)).
With the exception of the amounts allocated to the abused children's counseling and comprehensive rehabilitation accounts, Appellant does not contest the amount of court costs assessed against him. He points to the unconstitutionality of those fees under Salinas and argues that the amount of court costs should be proportionately reduced. Because (1) no petition for discretionary review is pending on Appellant's claim and (2) the proceedings in the trial court ended on March 3, 2017—prior to the court's mandate in Salinas on June 30, 2017—the court's holding in that case does not apply. See id .; see also Salinas v . State , No. PD-0170-16 (Tex. Crim. App. June 30, 2017) (mandate); Smith v. State , No. 12-17-00089-CR, 2018 WL 345740, at *4 (Tex. App.—Tyler Jan.10, 2018, no pet.) (mem. op., not designated for publication).
Nevertheless, Appellant urges this court to modify the judgment and refund the fees that have been held by the Salinas court as unconstitutional based upon the recent United States Supreme Court ruling in Nelson v. Colorado , 581 U.S. ___, 137 S. Ct. 1249, 197 L. Ed. 2d 611 (2017). Appellant acknowledges that his trial ended before the mandate in Salinas issued but argues that the holding in Nelson requires us to apply Salinas to all cases on appeal after the mandate. We decline to do so.
In Nelson , one petitioner was acquitted of the charges against her and another petitioner's conviction was vacated; both sought refunds of monies paid and allocated to costs, fees, and restitution. See id ., 581 U.S. ___, 137 S.Ct. at 1250-51. The Nelson opinion held that Colorado's Exoneration Act, which conditioned a refund of monies paid as a result of criminal prosecution on a defendant initiating a civil proceeding and proving his innocence by clear and convincing evidence, violated the petitioners' due process rights under the Fourteenth Amendment because both petitioners were in the position of enjoying the presumption of innocence. See id .; see also U.S. CONST. amend. XIV.
We are not persuaded that Nelson impacts Salinas. In Salinas , the court of criminal appeals held that because its ruling was based on the separation of powers provision of the Texas Constitution, it was free to decide which retroactivity rules apply. Salinas , 523 S.W.3d at 111-12 (stating that the Griffith v. Kentucky , 479 U.S. 314, 107 S. Ct. 708, 93 L. Ed. 2d 649 (1987) retroactivity rule that newly announced federal constitutional rules must be retroactively applied to all cases pending on direct review or not yet final when the rule was announced is binding upon the states only when federal constitutional errors are involved but does not bind the states on matters of state law). The court concluded that its new state constitutional rule did not involve the personal rights of a defendant and therefore it would conduct a Stovall analysis, which requires consideration of (1) the purpose to be served by the new standards, (2) the extent of reliance by law enforcement authorities on the old standards, and (3) the effect a retroactive application of new standards would have on the administration of justice. See id . at 112; see also Stovall v . Denno , 388 U.S. 293, 297, 87 S. Ct. 1967, 1970, 18 L. Ed. 2d 1199 (1967), overruled by Griffith , 479 U.S. at 314, 107 S. Ct. at 708. The court noted that the outcome of this balancing test usually turned on whether the new rule impacts the truth-finding function of the courts or is merely procedural. See Salinas , 523 S.W.3d at 112. Holding that the costs a defendant pays has nothing to do with truth-finding, that the State's reliance interests are heavy, and that retroactivity could create large administrative burdens on court clerks throughout the state, the court determined that its ruling should only apply prospectively and to defendants who raised the appropriate claim in a petition for discretionary review before the date of the opinion. See id . at 112-13.
Thus, because the Nelson holding was predicated upon a violation of the due process clause under the Fourteenth Amendment, and the Salinas holding is predicated upon the separation of powers doctrine under the Texas Constitution, which does not affect a defendant's personal rights, we decline to apply Nelson here. See id ., see also Nelson , 581 U.S. ___, 137 S. Ct. at 1250-51; Waters v. State , No. 12-17-00202-CR, 2018 WL 524870, at *2-3 (Tex. App.—Tyler Jan. 24, 2018, no pet.) (mem. op., not designated for publication). Further, we are required to comply with the instructions set out in the Texas Court of Criminal Appeals' opinions because they are binding authority on this Court. See Purchase v . State , 84 S.W.3d 696, 701 (Tex. App.—Houston [1st Dist.] 2002, pet. ref'd); Fielder v. State , No. 12-11-00090-CR, 2012 WL 951916, at *2 (Tex. App.—Tyler March 14, 2012, pet ref'd) (mem. op., not designated for publication); see also TEX. CONST. art. V, § 5(a) (stating that the court of criminal appeals is final authority for criminal law in Texas).
Accordingly, based on the foregoing reasons, we overrule Appellant's second issue.
DISPOSITION
Having overruled Appellant's first and second issues, we affirm the trial court's judgment.
GREG NEELEY
Justice Opinion delivered April 25, 2018.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
(DO NOT PUBLISH)
COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
Appeal from the 294th District Court of Van Zandt County, Texas (Tr.Ct.No. CR09-00054)
THIS CAUSE came to be heard on the appellate record and briefs filed herein, and the same being considered, it is the opinion of this court that there was no error in the judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment of the court below be in all things affirmed, and that this decision be certified to the court below for observance.
Greg Neeley, Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.