Opinion
02-23-00102-CR
08-17-2023
Christopher Faran Stanford, Appellant v. The State of Texas
Do Not Publish Tex.R.App.P. 47.2(b)
On Appeal from the 415th District Court Parker County, Texas Trial Court No. CR22-0849
Before Kerr, Birdwell, and Womack, JJ.
MEMORANDUM OPINION
Dana Womack, Justice
I. Introduction
Appellant Christopher Faran Stanford pleaded guilty to felony driving while intoxicated and received a life sentence. See Tex. Penal Code Ann. § 49.09(b)(2); see also id. § 12.42(d) (stating punishment range for felony offense committed after two prior and sequential felony convictions).
Stanford does not challenge his conviction or sentence. In a single point, he complains that the trial court erred by finding he had the resources to reimburse the cost of his trial and appellate appointed counsel and asks us to modify the trial court's appointed-counsel orders to delete that finding. The State agrees that the evidence is insufficient to support the finding and that the orders should be modified to delete the requirement that Stanford pay those costs.
Because the record reflects that the trial court erred by requiring Stanford, an indigent, to reimburse the cost of his appointed trial and appellate counsel, we sustain Stanford's single point, modify the trial court's appointed-counsel orders as requested, affirm those orders as modified, and affirm the trial court's unchallenged judgment.
II. Discussion
An indigent defendant is entitled to appointed counsel in an adversary judicial proceeding that may result in punishment by confinement and in an appeal to a court of appeals. See Tex. Code Crim. Proc. Ann. art. 1.051(c), (d)(1). In determining whether a defendant is indigent, the trial court may consider the defendant's income, source of income, assets, property owned, outstanding obligations, necessary expenses, the number and ages of any dependents, and spousal income available to the defendant, but not whether the defendant has posted or is capable of posting bond, except to the extent that it reflects the defendant's finances as measured by the above considerations. Id. art. 26.04(m). A defendant who is determined by the court to be indigent is presumed to remain so for the remainder of the case's proceedings unless a material change in his or her financial circumstances occurs. Id. art. 26.04(p).
If the trial court determines that the defendant has the financial resources to offset the costs of appointed counsel, the trial court "shall order the defendant to pay during the pendency of the charges or, if convicted, as a reimbursement fee the amount that the judge finds the defendant is able to pay." Id. art. 26.05(g). "[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." Cates v. State, 402 S.W.3d 250, 251 (Tex. Crim. App. 2013) (quoting Mayer v. State, 309 S.W.3d 552, 556 (Tex. Crim. App. 2010)); see Jones v. State, No. 02-21-00214-CR, 2023 WL 3017656, at *3 (Tex. App.-Fort Worth Apr. 20, 2023, no pet.) (mem. op., not designated for publication) (stating pivotal issue is proof of ability to pay).
Stanford requested appointed counsel and supported his request with an unsworn declaration in which he gave his grandmother's address as his residence, stated that he was unemployed, and explained that his last job had been five years before. He declared that he owned no vehicles or property, had no cash, and was in jail on a $15,000 bond that neither he nor anyone he knew could afford. He made his unsworn declaration under penalty of perjury and authorized the indigent defense intake coordinator to verify his information. A community-supervision employee noted that Stanford told her that he had been taking care of his father, who had Parkinson's disease, and his ninety-seven-year-old grandmother.
See Tex. Civ. Prac. & Rem. Code Ann. § 132.001(a) (stating that an unsworn declaration may be used in lieu of a written sworn declaration or affidavit required by statute or rule). The form of Stanford's unsworn declaration substantially complies with Section 132.001(e), which governs unsworn declarations made by inmates, and was made on the form provided to him by Parker County's community supervision and corrections department. See id. § 132.001(e).
Despite the information in Stanford's unsworn declaration, the trial court found in its September 7, 2022 appointed-counsel order that Stanford "presently has financial resources and/or an ability to pay all or part of the cost of legal services and related expenses to be provided" and ordered him to "contribute to the cost of the legal services and related expenses."
The judgment in this case states that Stanford owes $290 in costs and $10 in "Misc. Fees" and that "after having conducted an inquiry into Defendant's ability to pay, as directed by Article 42.15 . . .[,] the Court ORDERS Defendant to pay all fines, court costs, reimbursement fees and restitution as indicated above and further detailed below." The trial court signed an order to withdraw $300 over time from Stanford's inmate account upon "find[ing] that the offender is unable to pay the court costs, fees and/or fines on this date[.]" The April 18, 2023 bill of costs lists the $300 amount, which does not include attorney's-fee charges.
Article 42.15 addresses fines and costs in the trial court's judgment of conviction. See Tex. Code Crim. Proc. Ann. art. 42.15.
Stanford notes that the record does not currently contain an order assessing a specific attorney's-fee amount against him but argues that the issue is ripe "as the trial court has already ruled that [he] has the present ability to pay." He states that based on the ability-to-pay findings, the trial court could issue a nunc pro tunc order to assess attorney's fees against him. We agree. See Guevara v. State, No. 02-21-00069-CR, 2022 WL 1042919, at *2 n.1 (Tex. App.-Fort Worth Apr. 7, 2022, no pet.) (mem. op., not designated for publication) (agreeing that the attorney's-fee issue was ripe under similar circumstances).
In its May 8, 2023 order appointing appellate counsel, the trial court again found that Stanford "presently has financial resources and/or an ability to pay all or part of the cost of legal services and related expenses to be provided by this order." The trial court ordered Stanford to "contribute to the cost of the legal services and related expenses as may be ordered by the court."
Stanford's unsworn declaration shows that he had no income, assets, money, vehicles, or employment and that he was in custody. The record reflects that Stanford received credit for 247 days' confinement before the judgment's entry but does not show any material change in his financial circumstances. Cf. Tex. Code Crim. Proc. Ann. art. 26.04(p). Accordingly, nothing in the record supports the trial court's ability-to-pay findings in the appointed-counsel orders or that he could contribute to the cost of the legal services and related expenses. Because the record does not support these findings and orders, we sustain Stanford's sole point.
III. Conclusion
Having sustained Stanford's sole point, we modify the trial court's appointed-counsel orders to delete the trial court's finding that Stanford had the financial resources or ability to pay all or part of the cost of legal services and related expenses and to delete the requirement that Stanford contribute to the cost of those services and related expenses. We affirm the orders as modified and affirm the trial court's unchallenged judgment.