Opinion
No. 06-15-00154-CR
01-14-2016
ARTIS LADELLE WILLIAMS, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 71st District Court Harrison County, Texas
Trial Court No. 15-0053X Before Morriss, C.J., Moseley and Burgess, JJ.
MEMORANDUM OPINION
Artis Ladelle Williams entered an open plea of guilty to and was convicted of possession of methamphetamine in an amount of one gram or more but less than four grams and possession of cocaine in an amount of four grams or more but less than 200 grams. Following a jury trial on punishment, Williams was sentenced to ten years' imprisonment for his possession of methamphetamine and fifteen years' imprisonment for his possession of cocaine and was ordered to pay $4,211.25 in attorney fees for his court-appointed counsel.
On appeal, Williams argues that the trial court erred in its submission of parole law to the jury and in assessing court-appointed attorney fees against him because he is indigent. We modify the trial court's judgment to eliminate the assessment of attorney fees and affirm the judgment as modified, because (1) the jury submission on parole law was not error and (2) attorney fees cannot be assessed against an indigent defendant.
(1) The Jury Submission on Parole Law Was Not Error
Article 37.07 of the Texas Code of Criminal Procedure sets forth the language of special jury instructions explaining state parole laws. TEX. CODE CRIM. PROC. ANN. art. 37.07, § 4(c) (West Supp. 2015). Williams argues that the trial court erred in modifying the statutory language of the applicable parole instruction, but fails to specify how the instruction was modified. Our review of the trial court's written charge on punishment establishes that the court included the statutory language set forth in Article 37.07, Section 4(c), verbatim. See id.
At one point, Williams' briefing appears to suggest that the same instruction should have been repeated for each count in the State's indictment. Williams cites no authority for his position. Further, the parole instruction containing the proper language was prefaced with the notation, "As to Counts I and II," indicating that the instruction applied to both counts in the State's indictment. At another point, Williams appears to complain that the trial court erred in referring the jury to the court's charge when it inquired whether Williams' sentences would run consecutively or concurrently. Again, Williams fails to explain why this action was in error. "Absent any evidence to the contrary, we presume that the jury followed the instructions of the trial court." Riley v. State, 447 S.W.3d 918, 931 (Tex. App.—Texarkana 2014, no pet.) (citing Miles v. State, 204 S.W.3d 822, 828 (Tex. Crim. App. 2006)). --------
Because the trial court provided the correct statutory instruction to the jury, we overrule this issue.
(2) Attorney Fees Cannot Be Assessed Against an Indigent Defendant
Williams, who has been determined to be indigent, also argues that the trial court erred in assessing $4,211.25 in court-appointed attorney fees against him. The State concedes this point. We agree that the assessment must be removed.
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 the defendant to offset in part or in whole the costs of the legal services provided to the defendant." TEX. CODE CRIM. PROC. ANN. art. 26.05(g) (West 2015). Williams' financial resources and ability to pay are key to the trial court's determination of whether to order reimbursement of legal fees. Armstrong v. State, 340 S.W.3d 759, 765-66 (Tex. Crim. App. 2011). Since there is no finding that Williams is able to pay attorney fees, assessing them was erroneous. See Cates v. State, 402 S.W.3d 250, 252 (Tex. Crim. App. 2013); see also Mayer v. State, 309 S.W.3d 552 (Tex. Crim. App. 2010); Martin v. State, 405 S.W.3d 944, 946-47 (Tex. App.—Texarkana 2013, no pet.).
We may modify the judgment and affirm in this situation. See 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 $4,211.25 for attorney fees from the judgment.
We affirm the judgment as modified.
Josh R. Morriss, III
Chief Justice Date Submitted: December 22, 2015
Date Decided: January 14, 2016 Do Not Publish