                                                                                  ACCEPTED
                                                                              12-15-00247-CR
                                                                 TWELFTH COURT OF APPEALS
                                                                               TYLER, TEXAS
                                                                       11/19/2015 11:02:42 AM
                                                                                    Pam Estes
                                                                                       CLERK

                     No. 12-15-00247-CR

                                                             FILED IN
                                                     12th COURT OF APPEALS
          IN THE TWELFTH COURT OF              APPEALS     TYLER, TEXAS
                    TYLER, TEXAS                     11/19/2015 11:02:42 AM
                                                            PAM ESTES
                                                              Clerk

                 CARLOS DEHENRI COOK

                                Appellant,

                               v.

                   THE STATE OF TEXAS

                                    Appellee


On Appeal from the Seventh District Court of Smith County, Texas
                 Trial Cause No. 007-1536-13




          ORAL ARGUMENT NOT REQUESTED


                           Austin Reeve Jackson
                           Texas Bar No. 24046139
                           112 East Line, Suite 310
                           Tyler, TX 75702
                           Telephone: (903) 595-6070
                           Facsimile: (866) 387-0152
                   IDENTITY OF PARTIES AND COUNSEL


Attorney for Appellant

Appellate Counsel:
Austin Reeve Jackson
305 S. Broadway, Suite 700
Tyler, TX 75702

Trial Counsel:
O.W. Loyd
231 S. College Ave.
Tyler, TX 75702

John Jarvis
326 S. Fannin
Tyler, TX 75702

Attorney for the State on Appeal

Michael J. West
Assistant District Attorney, Smith County
4th Floor, Courthouse
100 North Broadway
Tyler, TX 75702




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                                           TABLE OF CONTENTS


IDENTITY OF PARTIES AND COUNSEL ................................................................. ii
TABLE OF CONTENTS .............................................................................................. iii
INDEX OF AUTHORITIES ......................................................................................... iv
STATEMENT OF THE CASE .......................................................................................2
ISSUES PRESENTED ....................................................................................................2
STATEMENT OF FACTS ..............................................................................................2
SUMMARY OF THE ARGUMENT ..............................................................................3
ARGUMENT ..................................................................................................................4

    I.      THE TRIAL COURT ERRED IN ASSESSING ATTORNEY'S
            FEES AGAINST AN INDIGENT DEFENDANT ........................................4

    Applicable Law ..........................................................................................................4

    Relevant Facts ............................................................................................................5

    Conclusion ..................................................................................................................6

PRAYER FOR RELIEF ..................................................................................................7
CERTIFICATE OF SERVICE ........................................................................................7
CERTIFICATE OF COMPLIANCE ..............................................................................7




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                                    INDEX OF AUTHORITIES


TEXAS COURT OF CRIMINAL APPEALS:

Mayer v. State,
 309 S.W.3d 522 (Tex.Crim.App. 2010) ........................................................ 4


TEXAS COURTS OF APPEAL:

Barrera v. State,
 291 S.W.3d 515 (Tex.App.—Amarillo 2009) ............................................... 5

Williams v. State,
 332 S.W.3d 694 (Tex.App.—Amarillo 2011) ............................................... 4


STATUTES:

TEX. CODE CRIM. PROC. art. 26.04.................................................................... 4

TEX. CODE CRIM. PROC. art. 26.05.................................................................... 4




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                             No. 12-15-00247-CR


                   IN THE TWELFTH COURT OF APPEALS
                             TYLER, TEXAS


                        CARLOS DEHENRI COOK

                                        Appellant,

                                      v.

                          THE STATE OF TEXAS

                                           Appellee


       On Appeal from the Seventh District Court of Smith County, Texas
                        Trial Cause No. 007-1536-13




TO THE HONORABLE JUSTICES OF THE COURT:

      Comes Now, Austin Reeve Jackson, attorney for Carlos Cook, and files this

brief pursuant to the TEXAS RULES OF APPELLATE PROCEDURE, and would show

the Court as follows:
                         STATEMENT OF THE CASE

      Carlos Cook seeks to appeal his conviction and sentence for the felony

offense of Tampering with Evidence. (I CR 74). This judgment was rendered

against him in the Seventh District Court of Smith County in September of this

year. (Id.). After initially being placed on probation following his plea of “guilty”

to the offense, on 22 September, the trial court revoked Mr. Cook’s community

supervision and imposed punishment at five years’ confinement. (Id.). Notice of

appeal was then timely filed. (I CR 72).

                              ISSUES PRESENTED

      I.     THE TRIAL           COURT ERRED              IN ASSESSING
             ATTORNEY’S          FEES AGAINST             AN INDIGENT
             DEFENDANT.

                           STATEMENT OF FACTS

      After having been indicted for the felony offense of tampering with

evidence, Appellant, Mr. Carolos Cook, entered a plea of “guilty” before the

Seventh District Court of Smith County and, pursuant to a plea agreement, was

sentenced to serve ten years’ confinement probated for four years. (I CR 1, 44).

      Unfortunately, in September of this year Mr. Cook found himself facing an

application to revoke that community supervision. (I CR 48). To all the allegations

made against him, Mr. Cook entered pleas of “true.” (I CR 70). Based on his plea

the trial court found it to be true that Mr. Cook had violated the terms and



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conditions of his community supervision and the court then revoked the

community supervision and sentenced Mr. Cook to serve a term of five years

confinement. (I CR 74). Sentence was pronounced on 22 September and notice of

appeal then timely filed. (I CR 72, 74).

                           SUMMARY OF ARGUMENT

        In the absence of some evidence that a defendant who has previously been

determined to be indigent has the resources to pay all or part of his attorney’s fees,

a trial court errs in imposing the same as a cost of court. Because in the instant

case there was no such evidence, and because Mr. Cook had been determined to be

indigent, the Court should reform the judgment by removing the charged attorney’s

fees.

        Alternatively, where the record is not clear as to whether the attorney’s fees

assessed where included in full or part in the amount of court costs ordered, and, in

fact, where the record is silent as to how the amount of costs ordered was derived

from the list of costs in the bill of costs, the Court should remand the case for new

findings on that issue or the creation of a new bill of costs.




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                                    ARGUMENT

       I.    THE TRIAL            COURT ERRED               IN ASSESSING
             ATTORNEY’S           FEES AGAINST              AN INDIGENT
             DEFENDANT.

       Applicable Law

       Article 26.05 of the Texas Code of Criminal Procedure provides that the

costs of appointed counsel may be imposed against a defendant if the court finds

that the defendant “has financial resources that enable him to offset in part or in

whole the costs of the legal services provided.” TEX. CODE CRIM. PROC. art.

26.05(g).   However, where the record before the court fails to establish a

defendant’s financial ability to offset such costs, “a trial court errs if it orders the

reimbursement of court-appointed attorney’s fees.” Williams v. State, 332 S.W.3d

694, 699 (Tex.App.—Amarillo 2011, pet. denied) (citing Mayer v. State, 309

S.W.3d 522 (Tex.Crim.App. 2010). Further, once a defendant has been found to

be indigent, that finding continues unless evidence establishes a material change in

his financial status. Id. (citing TEX. CODE CRIM. PROC. art. 26.04(p); Mayer, 309

S.W.3d at 557). Where attorney’s fees have erroneously been imposed the proper

remedy is to reform the judgment by deleting the same. Mayer, 309 S.W.3d at

557.




                                           4	  
      Relevant Facts

      After being indicted for the underlying offense Mr. Cook was determined to

be indigent and granted court appointed counsel. (I CR 14). The same finding was

made when Mr. Jones returned to court on the revocation proceeding. (I CR 56).

Finally, that finding of indigence continued for purposes of appeal. (I CR 79).

      When imposing punishment the trial court ordered payment of costs of

court. (I CR 74). A Bill of Costs supporting those costs was prepared and reflects

that $300 of the court costs is for attorney fees. (I CR 83). However, the record

does not contain any information that would indicate that the original finding of

indigence had changed or that Mr. Cook had the ability to pay any or all of the

costs for his appointed counsel. (I CR gen.; IV RR gen.) Because no such

evidence exists the trial court erred in imposing attorney’s fees against Mr. Cook.

Barrera v. Sate, 291 S.W.3d 515, 518 (Tex.App.—Amarillo 2009, no pet.).

      Alternatively, because the record is not clear as to how the amount ordered

as costs was calculated, it is prayed that the Court remand the case for clarification

as to the basis, if any, for the costs ordered. Specifically, The court costs ordered

paid in the court’s written judgment and withholding order was for an amount of

$289.00. (I CR 74, 75). Although this amount is less than the $300 ordered in

attorney’s fees, the record is unclear as to whether that $289 amount includes any

part of the attorney’s fees or how that amount was otherwise calculated. (Id.). In



                                          5	  
order to ensure that the costs ordered do not include any legally impermissible

costs, and to ensure that Smith County will not wrongfully seek to collect

attorney’s fees against Mr. Cook in the future, the Court should remand the case

for further clarification or order the trial court to submit a new bill of costs

showing the source or sources that form the basis for the $289 ordered.	  

      Conclusion

      Given that the record establishes that Mr. Cook was indigent at the time of

trial, and because the record does not establish any support for the conclusion that

that status changed, the Court should reform the trial court’s judgment as to the

assessment of attorney’s fees by deleting the $300 in attorney’s fees ordered or,

alternatively, remand the case for supplemental findings or a supplemental bill of

costs detailing those fees on which the trial court relied in calculating the amount

ordered.

                              PRAYER FOR RELIEF

      WHEREFORE, PREMISES CONSIDERED, it is respectfully prayed that

the Court reform the written judgment to omit attorney’s fees.

                                                   Respectfully submitted,

                                                   /s/ Austin Reeve Jackson
                                                   Texas Bar No. 24046139
                                                   305 S. Broadway, Suite 700
                                                   Tyler, TX 75702
                                                   Telephone: (903) 595-6070
                                                   Facsimile: (866) 387-0152

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                           CERTIFICATE OF SERVICE

      I certify that a true and correct copy of this brief was delivered to counsel for

the State by efile / facsimile concurrently with its filing in the Court.

                                                   /s/Austin Reeve Jackson


                       CERTIFICATE OF COMPLIANCE

      I certify that this document complies with the requirements of Rule 9.4 and

consists of 1,184 words.

                                                   /s/ Austin Reeve Jackson
                                                   	  




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