                                                                            ACCEPTED
                                                                        12-15-00112-CR
                                                           TWELFTH COURT OF APPEALS
                                                                         TYLER, TEXAS
                                                                  7/13/2015 12:00:00 AM
                                                                          CATHY LUSK
                                                                                 CLERK

                                         No oral argument requested
        CASE NO. 12-15-00112-CR
                                                       FILED IN
                  IN THE                        12th COURT OF APPEALS
                                                     TYLER, TEXAS
                                                7/12/2015 9:42:53 PM
      TWELFTH COURT OF APPEALS
                                                     CATHY S. LUSK
                                                         Clerk
             TYLER, TEXAS

     _______________________________

MELISSA BROWNING HERNANDEZ, Appellant
                vs.
    THE STATE OF TEXAS, Appellee
  _______________________________

           On Appeal from the
         392nd Judicial District Court
         Henderson County, Texas

     (Trial Court Case Number: B-21,601)

Honorable Judge Carter W. Tarrance, Judge Presiding


           BRIEF OF APPELLANT


                Linda A. Altier
               Altier Law Offices
               1527 E. Fifth St.
               Tyler, Texas 75701
               Tel: 903-595-4232
               Fax: 903-595-0031
          e-mail: altierlaw@gmail.com
        State Bar of Texas No.: 00783541

     Attorney for Appellant, Melissa Browning Hernandez
                  IDENTITIES OF PARTIES AND COUNSEL

State of Texas, Appellee
Plaintiff in Trial Court

Ms. Melissa Browning Hernandez, Appellant
Defendant in Trial Court

TRIAL COURT COUNSEL

Ms. Jenny Palmer, Attorney for State
125 N. Prairieville St.
Athens, Texas 75751

Mr. Daniel Cox, Attorney for State
125 N. Prairieville St.
Athens, Texas 75751

Ms. Linda A. Altier, Attorney for Defendant
1527 E. Fifth St.
Tyler, Texas 75701


APPELLATE COUNSEL

Ms. Linda Altier, Attorney for Appellant
1527 E. Fifth St.
Tyler, Texas 75701

Mr. R. Scott McKee, Attorney for State
125 N. Prairieville St.
Athens, Texas 75751




                                       i
                      TABLE OF CONTENTS

Identity of Parties and Counsel ……………………………………………………i

Index of Authorities ………………………………………………………………iii

Statement of the Case ……………………………………………………………..2

Statement of Jurisdiction…………………………………………………………..3

Issues Presented ……………………………………………………………………3

    POINT OF ERROR:

THE EVIDENCE IS LEGALLY INSUFFICIENT TO SUPPORT THE TRIAL
COURT’S ASSESSMENT OF ATTORNEY’S FEES AGAINST APPELLANT.

Statement of Facts ………..……………………………………………………….3

Point of Error Restated… . . ………………………………………………………4

Summary of the Argument.………………………………………………………..4

Argument and Authority ………………………………………………………….4

Certificate of Service………………………………………………………………7

Certificate of Compliance…………………………………………………………7




                            ii
                        INDEX OF AUTHORITIES

CASES:                                                                     Page

Barker v. State, No. 12-13-00032-CR, Memorandum Opinion
(Tex. App.-Tyler 2015) unpublished . . . . . . . . . . . . . . . . ……………………….. 6

Johnson v. State, 405 S.W.3d 350 (Tex.App.-Tyler 2013).………………………. 5

Wolfe v. State, 377 S.W.3d 141 (Tex.App.-Amarillo, 2012, no pet)……….. . 5,6



STATUTES AND RULES:

Texas Code of Criminal Procedure, Article 26.05 (g). ….……………………… 5,6




                                     iii
                       CASE NO. 12-15-00112-CR

                                  IN THE

                    TWELFTH COURT OF APPEALS

                               TYLER, TEXAS

                   _______________________________

              MELISSA BROWNING HERNANDEZ, Appellant
                              vs.
                  THE STATE OF TEXAS, Appellee
                _______________________________

                         On Appeal from the
                          nd
                      392 Judicial District Court
                       Henderson County, Texas

                   (Trial Court Case Number: C-21,601)

             Honorable Judge Carter W. Tarrance, Judge Presiding


                          BRIEF OF APPELLANT


TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:

      COMES NOW MELISSA BROWNING HERNANDEZ, hereinafter

sometimes referred to as Appellant, and submits this her Brief on Appeal in the

above entitled and numbered Cause, pursuant to the provisions of the Texas Rules

of Appellate Procedure.

                                      1
                   APPELLANT WAIVES ORAL ARGUMENT

                         STATEMENT OF THE CASE

      On October 2, 2014, a grand jury indicted Melissa Browning Hernandez,

hereinafter sometimes referred to as Appellant, for Theft Over $20,000/Elderly, a

Third Degree Felony, (CR1:1-3). Ms. Linda A. Altier was appointed by the Court

to represent Appellant as an indigent Defendant. On February 2, 2015 Appellant

waived her right to a trial by jury (CR 1:21). On March 17, 2015 a pre-sentence

investigation report was completed (CR 1:23-28). On April 16, 2015 Appellant

entered her guilty plea (CR 1:29-30) and the Court heard the testimony and

evidence at a sentencing hearing. The Court found Appellant guilty and sentenced

her to Six (6) years confinement in the Texas Department of Corrections

Institutional Division, (CR 1:36-37). In the Judgement of Conviction, although

Defendant was indigent, the Court ordered her pay her Defense Attorney’s fees

(CR1:36). On April 27, 2015, Ms. Linda A. Altier was appointed to represent

indigent Defendant on appeal (CR 1:34). Appellant filed her Notice of Appeal on

April 27, 2015 (CR 1:35).

Note:        For purposes of this Appeal Brief, all references to the Clerk’s Record
will be noted as “CR,” followed by the volume number and page number.
References to the Reporter’s Record will be noted as “RR,” followed by the
volume number, page number and line as necessary. Any emphasis added by this
writer will be noted as same immediately following the word or phrase emphasized
by italics.

                                      2
                         STATEMENT OF JURISDICTION

      For the reasons above stated the Twelfth Court of Appeals holds jurisdiction.

                         ISSUES PRESENTED

      POINT OF ERROR:

THE EVIDENCE IS LEGALLY INSUFFICIENT TO SUPPORT THE TRIAL
COURT’S ASSESSMENT OF ATTORNEY’S FEES AGAINST APPELLANT.

                          STATEMENT OF FACTS

      When initially arrested, Appellant applied for a Court Appointed Attorney to

defend her in her felony charges of Theft Over $20,000 from the Elderly, a Third

Degree Felony. Her application was approved by the trial Court and Linda A.

Altier was appointed to represent her. On February 2, 2015, Appellant signed an

agreement to plead guilty to the Court which also stated that Appellant was

represented by a Court appointed attorney (CR 1:21). Following testimony at the

sentencing trial on April 16, 2015, the Court adjudicated Appellant guilty and

sentenced her to six (6) years confinement in the Texas Department of Corrections

Institutional Division (CR 1:36-37)).     In the Judgment, the trial Court also

assessed attorney fees to be paid by Appellant. On April 27, 2015, the trial Court

found that Appellant’s indigent status did not change for purposes of her appeal

and appointed Ms. Linda A. Altier for the appeal. (CR 1:35)



                                      3
      POINT OF ERROR (Restated):

THE EVIDENCE IS LEGALLY INSUFFICIENT TO SUPPORT THE TRIAL
COURT’S ASSESSMENT OF ATTORNEY’S FEES AGAINST APPELLANT.

                   SUMMARY OF THE ARGUMENT

      Following the initial determination by the trial Court of Appellant’s status as

indigent, the trial Court had sufficient evidence of Appellant’s inability to repay

Court appointed Attorney’s fees, and there was no significant material change in

her financial condition following trial.     Accordingly, the trial Court erred in

assessing Appellant the cost of Attorney’s fees in the Judgment of Conviction.

                          ARGUMENT AND AUTHORITY

      The trial Court established, initially in this case, that Appellant was

indigent and without resources to retain legal counsel. Accordingly, an attorney

was appointed to represent her. Following her plea of guilty to the trial Court and

the presentation of evidence, the trial Court affirmed Appellant’s guilt and assessed

punishment at Six (6) years confinement in the Texas Department of Criminal

Justice, Institutional Division. No testimony or evidence was elicited regarding

repayment of the Attorney’s fees (RR 1:1-66). However, the trial Court did sign a

Judgment that included repayment of attorney’s fees in the amount of $750.00 (CR

1:36). A trial Court has authority to assess court appointed defense attorney’s fees

                                       4
against a Defendant when the trial Court determines Defendant has the resources to

pay part or all of the fees Tex.C.C.P. art. 26.05 (g).        Nevertheless, in this

particular case, the trial Court did not hear any testimony or evidence from

Appellant that would reflect she had financial resources to pay the attorney fees or

that she had a change in her financial or material circumstances since the trial

Court established her indigent status. Additionally, the trial Court was aware of

Appellant’s indigent status at the beginning of her legal process since the trial

Court approved Appellant’s request for a Court appointed attorney. Further, the

trial Court acknowledged Appellant’s uninterrupted indigent status approving her

request for a Court appointed appellant attorney to process her appeal (CR 1: 31).

      In Johnson v. State, 405 S.W.3d 350 (Tex.App.-Tyler 2013) the Court,

considering Tex.C.C.P. art 26.05, held that once a criminal defendant is determined

to be indigent, he is presumed to continue to be indigent for the remainder of the

proceedings unless a material change occurs in his financial circumstances. In

Wolfe v. State, 377 S.W.3d 141 (Tex.App-Amarillo 2012, no pet) the Amarillo

Court held that a trial Court must determine by some supported factual basis in the

record if a defendant has financial resources to offset in part or in whole the costs

of the Court appointed attorney fees before the trial Court can impose the attorney

fees on the defendant. Appellant argues that, as in Johnson v. State and following

                                       5
art 26.05 the trial Court determined she was indigent and she remained indigent

during the entire criminal proceedings; and as in Wolfe v. State, there was no

factual basis in the record of a material change in her financial resources to impose

repayment of attorney fees by Appellant. In Barker v. State, No. 12-13-00032-CR,

Memorandum Opinion (Tex. App.-Tyler 2015) unpublished, an appeal from the

173rd District Court, Henderson County, Texas, the Appellant argued, as does

Appellant Melissa Browning Hernandez, that the evidence was legally insufficient

to support the trial Court’s assessment of attorney’s fees in the absence of evidence

on the record to support a finding that Barker was not indigent. The Court of

Appeals, in Barker, held there was no basis in the record to support the imposition

of attorney’s fees and sustained Barker’s issue concerning attorney fees.

      For all the above reasons, this case should be reversed and remanded to the

trial Court for rehearing based on insufficient evidence to support the trial Court’s

decision to access attorney’s fees against Appellant.

                                        PRAYER

      WHEREFORE, PREMISES CONSIDERED, Appellant respectfully prays

that this Honorable Court hold that there is insufficient evidence to support the trial

Court’s assessment of attorney’s fees against Appellant and remand this case for

rehearing.

                                         6
                                               Respectfully Submitted,

                                               ALTIER LAW OFFICES
                                               1527 E. Fifth St.
                                               Tyler, Texas 75701
                                               Tel: 903-595-4232
                                               Fax: 903-595-0031
                                               altierlaw@gmail.com


                                               By: /s/ Linda A. Altier
                                               TSBN: 00783541
                                               Attorney for Appellant
                                               Melissa Browning Hernandez

                           CERTIFICATE OF SERVICE

            The undersigned hereby certifies that a true and correct copy of the
foregoing Appellant’s Brief will be served on the Attorney for the State, R. Scott
McKee, Henderson County District Attorney, 109 W. Corsicana St., Ste. 103,
Athens, Texas, by hand delivery, on July 13, 2015.

                                               /s/ Linda A. Altier


                        CERTIFICATE OF COMPLIANCE

             In compliance with TRAP 9.4(i), the undersigned hereby certifies that
the number of words contained in the above Brief of Appellant are 659; excluding
caption, identity of parties and counsel, statement regarding oral argument, table of
contents, index of authorities, statement of the case, statement of issues presented,
statement of jurisdiction, signature, proof of service, certification, and certificate of
compliance.


                                               /s/ Linda A. Altier

                                         7
