                               Fourth Court of Appeals
                                      San Antonio, Texas
                                  MEMORANDUM OPINION
                                         No. 04-13-00469-CR

                                         Darwin Glenn ROSS,
                                              Appellant

                                                  v.
                                              The State of
                                         The STATE of Texas,
                                               Appellee

                        From the 82nd District Court, Robertson County, Texas
                                  Trial Court No. 08-06-18481-CR
                           Honorable Robert Miller Stem, Judge Presiding

PER CURIAM

Sitting:          Sandee Bryan Marion, Justice
                  Marialyn Barnard, Justice
                  Rebeca C. Martinez, Justice

Delivered and Filed: October 2, 2013

DISMISSED FOR LACK OF JURISDICTION

           On June 2, 2008, appellant, who was indigent at trial, pled guilty to robbery pursuant to a

plea bargain. The trial court assessed punishment at seven years’ confinement and ordered

appellant to pay $215.00 in court costs and $450.00 in attorney’s fees. Also on June 2, 2008, the

trial court signed an Order to Withhold Funds From Inmate’s Trust Account for the payment of

court costs and attorney’s fees. Almost four years later, on June 27, 2011, appellant filed a Motion

to Dismiss Court Cost[s] and Attorney’s Fees in the trial court. On or about April 13, 2012, the

district clerk notified appellant “[t]here will be no response given” by the trial court on the motion.
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        On February 19, 2013, appellant filed a Motion to Offset/Reimbursement of Court-

Appointed Attorney’s Fees” (the “offset motion”) with the trial court. The next day, the trial court

denied the offset motion, without stating its reasons. On March 13, 2013, appellant appealed to

the Waco Court of Appeals. On June 27, 2013, the Texas Supreme Court transferred this appeal

to this court from the Waco Court of Appeals. See SUPREME COURT MISC. DOCKET NO. 13-9097.

        While the appeal was still pending before the Waco court, that court sent a letter to

appellant and the State notifying the parties that the court “question[ed] its jurisdiction to decide

this appeal because it is unclear whether [appellant’s] motion/complaint challenges the underlying

criminal judgment, including the amount or assessment of certain cost[s], or the procedure used to

collect that judgment.” The Waco court requested “briefing which identifies the issues to be

appealed and the Court’s jurisdiction thereof.” In his response, appellant raises two issues: (1) the

trial court abused its discretion in denying his offset motion because he was indigent at trial and

there was no determination made that he had the financial resources to pay the attorney’s fees, and

(2) the trial court erred by failing to make findings in support of its order denying his offset motion.

The State responds that this court lacks jurisdiction over the appeal. We agree with the State

because although appellant filed his notice of appeal within thirty days of the trial court’s denial

of his offset motion, the motion itself was not timely. Therefore, we dismiss this appeal for lack

of jurisdiction.

                                           DISCUSSION

        “On notification by a court, the [Texas Department of Criminal Justice] shall withdraw

from an inmate’s account any amount the inmate is ordered to pay by order of the court under this




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subsection.” TEX. GOV’T CODE ANN. § 501.014(e) (West 2012). 1 An award of costs and/or

attorney’s fees in a judgment of conviction may be challenged in a direct criminal appeal.

Armstrong v. State, 340 S.W.3d 759, 766 (Tex. Crim. App. 2011) (holding that because defendant

contested assessment of costs and sufficiency of evidence to support attorney’s fees, his claim

arose over enforcement of statutes governed by Texas Code of Criminal Procedure; therefore, case

was a criminal law matter). On the other hand, the “means of collection” of court costs or

attorney’s fees (often accomplished by garnishment of an inmate’s trust account) is a civil matter.

Id.; see Harrell v. State, 286 S.W.3d 315, 316, 318 (Tex. 2009) (matter was civil because “the

criminal case is over” and costs and fees were collected pursuant to Government Code section

501.014 and not any provision of the Code of Criminal Procedure).

         Whether the challenge is to the award of costs and fees or to the collection of costs and

fees, the appeal must be timely. Whether as part of a direct criminal appeal or an appeal in a civil

action, a notice of appeal is timely if filed within either thirty days or ninety days of the applicable

judgment or order. 2 Here, the trial court’s judgment of conviction assessing the attorney’s fees

and the order to withhold the fees from appellant’s inmate trust account were signed on June 2,

2008. Appellant raised his first challenge on June 27, 2011 in the trial court and he filed his appeal

on March 13, 2013. Because appellant did not timely challenge the award or collection of the




1
  The Texas Code of Criminal Procedure requires a trial court to determine whether “a defendant has financial
resources that enable him to offset in part or in whole” the cost of his appointed counsel. TEX. CODE CRIM. PROC.
ANN. art 26.05(g) (West 2012).
2
  In ordinary civil cases, “[t]he notice of appeal must be filed within 30 days after the judgment is signed . . . [or]
within 90 days after the judgment is signed if any party timely files: (1) a motion for new trial; (2) a motion to modify
the judgment; (3) a motion to reinstate under Texas Rule of Civil Procedure 165a; or (4) a request for findings of fact
and conclusions of law if findings and conclusions either are required by the Rules of Civil Procedure or, if not
required, could properly be considered by the appellate court.” TEX. R. APP. P. 26.1(a). In criminal cases, a defendant
must file the notice of appeal “(1) within 30 days after the day sentence is imposed or suspended in open court, or
after the day the trial court enters an appealable order; or (2) within 90 days after the day sentence is imposed or
suspended in open court if the defendant timely files a motion for new trial.” TEX. R. APP. P. 26.2(a).

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attorney’s fees from his inmate trust account, we have no option but to dismiss this appeal for lack

of jurisdiction.


                                                  PER CURIAM

Do not publish




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