                                  NO. 07-10-00201-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL A

                                      JULY 6, 2012


                          PAUL DAVID WOLFE, APPELLANT

                                            v.

                          THE STATE OF TEXAS, APPELLEE


             FROM THE 181ST DISTRICT COURT OF POTTER COUNTY;

                NO. 55,826-B; HONORABLE JOHN B. BOARD, JUDGE


Before CAMPBELL and HANCOCK and PIRTLE, JJ.



                     CONCURRING AND DISSENTING OPINION


      The majority’s opinion is correct in all respects but one. I join in the opinion’s

discussion and action with regard to the $400 attorney’s fees assessed against

appellant Paul David Wolfe after the January 2008 modification of his terms of

community supervision and the $825 attorney’s fees assessed him after the April 2010

revocation of his community supervision, adjudication of guilt and sentencing.        The

majority properly modifies the trial court’s judgment to eliminate those fees, because the

record contains no evidence appellant had the ability to offset the fees in whole or in
part. Tex. Code Crim. Proc. Ann. art. 26.05(g) (West Supp. 2011); Mayer v. State, 309

S.W.3d 552, 556 (Tex.Crim.App. 2010).            I agree entirely also with the majority’s

discussion and disposition of appellant’s fourth issue, concerning the sheriff’s fees.


       My difference with my colleagues concerns appellant’s ability to challenge, at this

time, the $400 in attorney’s fees assessed against him in September 2007 on the

occasion of his original plea hearing and placement on deferred-adjudication community

supervision.


       On his indictment in May 2007, appellant asserted his indigence and was

appointed counsel. Pursuant to a plea bargain agreement, he plead guilty and received

deferred-adjudication community supervision. A condition of the community supervision

order required that appellant pay all court costs including the fee of his appointed

counsel. The clerk’s record contains a bill of costs issued in September 2007 that lists

court-appointed attorney’s fees of $400.


       The majority is correct that Armstrong similarly involved a bill of costs containing

attorney’s fees assessed on an original plea hearing, a later modification of the terms of

community supervision and a later revocation, adjudication and sentencing. Armstrong

v. State, 340 S.W.3d 759, 761-62 (Tex.Crim.App. 2011). The majority is correct also

that, on remand from the Court of Criminal Appeals, the same panel of this court found

that none of the attorney’s fees were properly assessed because there was no evidence

of Armstrong’s ability to repay them at any point in the proceedings. We modified the

judgment to delete all the attorney’s fees assessed against him, including those he

agreed to pay as a condition of his original community supervision. Armstrong v. State,



                                             2
2011 Tex. App. Lexis 6637 (Tex.App.--Amarillo Aug. 17, 2011, no pet.) (mem. op.) (not

designated for publication). On further consideration, I now believe we erred in doing

so.


       In Armstrong, the Court of Criminal Appeals concluded that on direct appeal of

his criminal conviction Armstrong was entitled to review of his claim that insufficient

evidence supported the required reimbursement of court-appointed attorney’s fees

mandated by the clerk’s bill of costs issued pursuant to article 103.001 of the Code of

Criminal Procedure. 340 S.W.3d at 766-67; Tex. Code Crim. Proc. Ann. art. 103.001

(West 2006) (describing when cost is payable).         It now being clear that courts of

appeals are to engage in review of bills of costs1 on direct appeal of criminal

convictions, the question we confront here is whether such review is subject to, or is

exempt from, otherwise settled and generally applicable principles of appellate review.


       In Reyes v. State, 324 S.W.3d 865 (Tex.App.--Amarillo 2010, no pet.), we found

that principles set out in Speth v. State, 6 S.W.3d 530, 534-35 (Tex.Crim.App. 1999),

precluded an appellant from challenging the sufficiency of evidence supporting

reimbursement of attorney’s fees to which he had agreed as a condition of his deferred-

adjudication community supervision. 324 S.W.3d at 867-68; see Marquez v. State, No.

07-10-0366-CR, 2011 Tex.App. Lexis 2307 (Tex.App.--Amarillo March 30, 2011, no

pet.) (mem. op.) (not designated for publication) (similar holding). In this present case,


       1
          In Armstrong, the Court of Criminal Appeals quoted the statement of Justice
Pirtle that our court is being asked to review bills of costs with increasing frequency. 340
S.W.3d at 763. Justice Pirtle’s statement is even more true now than when made, and
one might even say our court is being asked to engage in a function of auditing bills of
costs. As an example, appellant’s fourth issue in this appeal challenges the propriety of
$171.94 of $196.74 assessed as sheriff’s fees in the clerk’s bill of costs.
                                             3
consistent with appellant’s application for community supervision, in which he

represented he would reimburse the county for compensation paid his appointed

counsel, the court’s 2007 order deferring adjudication and placing appellant on

community supervision ordered him to pay all court costs including the fee of his court-

appointed attorney. If applicable to appellant, Speth would seem to say that by entering

such a transaction, without objection, appellant affirmatively waived any complaint over

the assessment of attorney’s fees for the 2007 proceedings. Speth, 6 S.W.3d at 534-

35; Price v. State, No. 10-10-0303-CR, 2012 Tex. App. Lexis 3321, at *2-5 (Tex.App.--

Waco Apr. 25, 2012, n.p.h.) (mem. op.) (not designated for publication) (following Speth

and holding defendant should have complained to trial court about condition of

community supervision obligating payment of court-appointed attorney’s fees at time

condition was imposed and by not complaining he affirmatively accepted condition and

forfeited any complaint).


       The majority finds Speth does not control the issue, asserting appellant is not

complaining about the terms and conditions of his community supervision. Wolfe v.

State, No. 07-10-0201-CR, slip op. at 7 (citing Speth, 6 S.W.3d at 532-34). But it seems

to me the substance of appellant’s complaint is exactly that, a complaint about the

condition of his community supervision that he repay the $400 attorney’s fees, a

complaint based on an insufficiency of evidence he had the ability to repay that amount.

See Mayer, 309 S.W.3d at 558 n.3 (Keasler, J., dissenting) (citing Speth, 6 S.W.3d at

531 n.1, for proposition imposition of probation conditions is not appropriate for

sufficiency review); Speth, 6 S.W.3d at 534 n.8 (citing Tex. Code Crim. Proc. Ann. art.

42.12 § 11(b), and pointing out defendant can affirmatively waive complaint even to


                                           4
prohibited probation terms by entering into probation containing such terms, without

objection).


       Under other generally-applied principles, if appellant wished to complain of

attorney’s fees taxed against him through the 2007 order of deferred-adjudication

community supervision, he was required to raise the issue in a timely-filed appeal of that

order.2 Manuel v. State, 994 S.W.2d 658, 661-62 (Tex.Crim.App. 1999) (defendant

placed on deferred adjudication community supervision must challenge the order when

community supervision is imposed, not after revocation of community supervision);

Webb v. State, 20 S.W.3d 834, 835-36 (Tex.App.--Amarillo 2000 no pet.). But appellant

did not raise the issue until the present appeal following his 2010 adjudication. To the

extent, then, that his notice of appeal was intended to reach the 2007 order, it was

untimely. Tex. R. App. P. 26.2(a). In the absence of a timely-filed notice of appeal, our

jurisdiction is not invoked. Olivo v. State, 918 S.W.2d 519, 523 (Tex.Crim.App. 1996)

(on an appellant’s defective attempt to perfect appeal court of appeals lacks jurisdiction

and must dismiss the case); Sepeda v. State, No. 07-08-0385-CR, 2010 Tex. App.

Lexis 1132, at *8 (Tex.App.--Amarillo Feb. 17, 2010, pet. denied) (mem. op.) (not

designated for publication) (finding no jurisdiction to review, on direct appeal of

judgment of conviction, portion of court-appointed attorney’s fees ordered paid when

defendant was placed on deferred-adjudication community supervision).

       2
           The record contains appellant’s “waiver of appeal after sentence has been
imposed in accordance with plea bargain agreement,” signed by appellant and his
counsel at the time appellant’s adjudication was deferred. Accordingly, the trial court’s
certification following the deferral of adjudication states appellant had no right of appeal
and he waived the right of appeal. See Tex. R. App. P. 25.2(a)(2); Hargesheimer v.
State, 182 S.W.3d 906, 913 (Tex.Crim.App. 2006) (holding in plea bargain case for
community supervision, plea bargain is complete at time defendant enters plea of guilty
in exchange for deferred-adjudication community supervision).
                                             5
       The majority finds Olivo inapposite because it involved a late notice of appeal

and because, the majority says, appellant is not “attempting to appeal the September

2007 order placing him on deferred adjudication.” Wolfe v. State, No. 07-10-0201-CR,

slip op. at 4. But, again, it seems to me the substance of his complaint actually is

directed at the September 2007 order. Appellant is attempting to appeal the obligation

imposed on him to repay the 2007 attorney’s fees, asserting there is insufficient

evidence he had the ability to do so, and that obligation was imposed in the September

2007 order.    A characterization of that obligation as arising from the May 2010

judgment, making his appeal of it timely, seems artificial.3


       The Court of Criminal Appeals’ Armstrong opinion contains a reference to Speth

and Reyes, in a paragraph of the opinion describing the arguments made by the State.

340 S.W.3d at 764. The opinion contains no further reference to either case, however,

and the Court remanded Armstrong’s evidentiary-sufficiency argument to this court,

leading my colleagues to infer that the Court implicitly rejected the State’s contention

that Speth has application to our review of attorney’s fees listed in bills of cost issued

after revocation of community supervision. See Derby v. State, No. 09-11-0256-CR,

2011 Tex. App. Lexis 9810 (Tex.App.--Beaumont Dec. 14, 2011, no pet.) (mem. op.)

(not designated for publication) (following Armstrong, and also making reference to

State’s argument in that case; even though condition of appellant’s community

supervision required repayment of court-appointed attorney’s fees, because no


       3
         By its conclusion that no question of this court’s jurisdiction is raised by
appellant’s appeal, the majority may be using the term “jurisdiction” in the sense of the
court’s power to hear and determine a case. We lack jurisdiction under Olivo to hear
untimely-filed appeals because our jurisdiction has not been legally invoked. See Olivo,
918 S.W.2d at 523.
                                             6
evidence supported assessment of these fees in judgment on revocation, judgment was

modified to delete amount of attorney’s fees).


       I now regard that view as reflecting an overly-broad reading of Armstrong. I do

not read Armstrong as negating the application of Speth, Manuel or Olivo in the analysis

of challenges to assessment of attorney’s fees imposed as a condition of community

supervision on direct appeal following revocation, even when that challenge is brought

to fees assessed only in a certified bill of costs. See Leonard v. State, No. PD-0551-10,

2012 Tex. Crim. App. Lexis 477, at *15-17 (Tex.Crim.App. Mar. 7, 2012) (citing Speth).


       Accordingly, I would dismiss appellant’s challenge of attorney’s fees ordered

repaid as a condition of community supervision in 2007. I would modify the judgment to

limit the amount of court-appointed attorney’s fees taxed to appellant as a cost of court

to $400, and otherwise affirm the judgment. To the extent the majority modifies the

judgment by addressing the 2007 attorney’s fees, I respectfully dissent.




                                                      James T. Campbell
                                                             Justice



Publish.




                                            7
