                                                                          ACCEPTED
                                                                      14-14-01025-CR
                                                      FOURTEENTH COURT OF APPEALS
                                                                   HOUSTON, TEXAS
                                                                 4/20/2015 3:02:08 PM
                                                                CHRISTOPHER PRINE
                                                                               CLERK
                         No. 14-14-01025-CR
                             14-14-01026-CR
                             14-14-01027-CR
                                                      FILED IN
                                               14th COURT OF APPEALS
                    IN THE COURT OF APPEALS       HOUSTON, TEXAS
                      FOURTEENTH DISTRICT      4/20/2015 3:02:08 PM
                        HOUSTON, TEXAS         CHRISTOPHER A. PRINE
                                                        Clerk


                   CARLOS GALLEGOS-PIEDRA,
                           Appellant

                                Vs.

                      THE STATE OF TEXAS,
                            Appellee



          ON APPEAL FROM CAUSE NO. 73552, 73600, 74807
         412TH DISTRICT COURT, BRAZORIA COUNTY, TEXAS
         HONORABLE W. EDWIN DENMAN JUDGE PRESIDING

                    BRIEF FOR THE APPELLANT



Joseph Kyle Verret
THE LAW OFFICE OF KYLE VERRET, PLLC
Counsel for Appellant
TBN: 240429432
11200 Broadway, Suite 2743
Pearland, Texas 77584
Phone: 281-764-7071
Fax: 281-764-7071
Email: kyle@verretlaw.com

ATTORNEY FOR APPELLANT            ORAL ARGUMENT NOT REQUESTED
DATE: April 20, 2015
                               No. 14-14-01025-CR
                                   14-14-01026-CR
                                   14-14-01027-CR

                          IN THE COURT OF APPEALS
                            FOURTEENTH DISTRICT
                              HOUSTON, TEXAS


                         CARLOS GALLEGOS-PIEDRA,
                                 Appellant

                                        Vs.

                             THE STATE OF TEXAS,
                                   Appellee


                          BRIEF FOR THE APPELLANT



TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:

CARLOS GALLEGOS-PIEDRA, the Defendant in Cause 73552, 73600, 74807 in the

412th DISTRICT COURT, Brazoria County, Texas, respectfully submits this brief, and

would respectfully show the Court the following:




                                          i
                           TABLE OF CONTENTS

Parties to the Case…………………………………………………………………..…iii

List of Authorities………………………………………………………………………v

Statement of the Case………………………………………………………………….vi

Statement Regarding Oral Argument………………………………………...…….....vii

Issues Presented……………………………………………………………………....vii

Summary of the Argument……………………………………………………….…….1

Statement of Facts………………………………………………………………….…..2

Appellant’s Point of Error………………………………………………………….…..9

     The evidence is insufficient to support the trial court’s order that Appellant
     reimburse Brazoria County Collections Department for the payment of counsel
     appointed on account of Appellant’s indigence.

     Standard of Review…………………………………………………………….9

     Relevant Facts…………………………………………………………..…..….10

     Analysis………………………………………………………………..…..…..10

Conclusion and Prayer………………………………………………………………..12

Certificate of Service…………………………………………….................................13

Certificate of Word Count…………………………………...………………...…..….13




                                        ii
                               PARTIES TO THE CASE

APPELLANT:                CARLOS GALLEGOS-PIEDRA
Attorney for Appellant at Trial:

             Name:         Luis Ledesma
             SBN:          12108750
             Address:      P.O Box 204
                           West Columbia, Texas 77486

Attorney for Appellant on Appeal:
             Name:       Joseph Kyle Verret
             SBN:        24042932
             Address:    The Law Office of Kyle Verret, PLLC
                         1200 Broadway, Suite 2743
                         Pearland, Texas 77584
             Phone:      281-764-7071
             Fax:        281-764-7071
             Email:      kyle@verretlaw.com

APPELLEE:                  THE STATE OF TEXAS

Attorney’s for the State at Trial:

             Name:         Chase Clayton
             SBN:          24072040
             Address:      111 East Locus, Suite 408A
                           Angleton, Texas 77515

             Name:         Robyn Griffith
             SBN:          24012738
             Address:      111 East Locus, Suite 408A
                           Angleton, Texas 77515

Attorney for the State on Appeal:

             Name:         Jeri Yenne
             SBN:          04240950
             Name:         David Bosserman
             SBN:          02679520
             Address:      Brazoria County Criminal District Attorney
                           111 East Locust Street, Suite 408A
                                           iii
         Angleton, Texas 77515
Phone:   979-864-1230
Fax:     979-864-1525




                        iv
                             LIST OF AUTHORITIES
Statutes
Tex. Code Crim. Proc. Ann. Art. 26.04(Lexis current through 2013 3d C.S.).

Tex. Code Crim. Proc. Ann. Art. 26.05(Lexis current through 2013 3d C.S.).

Appellate Precedent

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

Mayer v. State, 309 S.W.3d 552, 555-56 (Tex. Crim. App. 2013).




                                          v
                           STATEMENT OF THE CASE

      On June 19, 2014, Appellant was indicted for the offense of Driving While

Intoxicated Third or More. (73552 C.R. at 5). On July 8, 2014, Appellant was

indicted for the offense of Possession of a Controlled Substance Penalty Group One,

less than one gram. (73600 C.R. at 5). On November 20, 2014, Appellant was

indicted for the offense of Bribery (74807 C.R. at 5).

      Appellant filed a motion to consolidate all three cause numbers on October 24,

2014. (73552 C.R. at 13; 73600 at 15).

      A consolidated jury trial on all three causes numbers was held on December 1,

2014. (2 R.R. at 4, 8). Appellant entered a plea of not guilty to the allegation of

Driving While Intoxicated, Third or More, Bribery, and Possession of a Controlled

Substance Penalty Group One (2 R.R. at 11-13). The jury found Appellant guilty of

Driving While Intoxicated Third or More, Bribery, and Possession of a Controlled

Substance, as indicted. (73552 C.R. at 49, 73600 C.R. at 40, 74807 C.R. at 31).

      The jury assessed punishment in case numbers 73552 and 74807. Appellant

was sentenced to 10 years confinement in the penitentiary for Driving While

Intoxicated Third or More. Appellant was sentenced to 15 years confinement in the

penitentiary for Bribery. (74807 C.R. at 39). The State and Appellant agreed to

punishment in Cause 73600. (5 R.R. 32-35, 7 R.R. at 10-11).

      Notice of appeal was filed in all three causes on December 17, 2014. (73552

C.R. at 67, 73600 C.R. at 53, 74807 C.R. at 49).

                                           vi
               STATEMENT REGARDING ORAL ARGUMENT

      Oral argument is not requested.

                              ISSUES PRESENTED
Appellants First Point of Error:

      The evidence is insufficient to support the trial court’s order that Appellant

reimburse Brazoria County Collections Department for the payment of counsel

appointed on account of Appellant’s indigence.




                                         vii
                        SUMMARY OF THE ARGUMENT

             The evidence is legally insufficient to support the trial court’s order that

Appellant reimburse Brazoria County for the payment of Appellant’s court appointed

counsel. Appellant was indigent and was appointed counsel to represent him at trial

and on appeal. There is no evidence in the record to support the trial court’s order that

Appellant repay court appointed attorney’s fees.




                                           1
                              STATEMENT OF FACTS
Testimony of Trooper Natee Wong

      On April 12, 2014, Trooper Natee Wong was working patrol in Alvin, Brazoria

County, Texas. (3 R.R. at 45, 59). At around 3 a.m., Trooper Wong was driving

through Alvin when he observed a Dodge pickup driving under the speed limit. (3

R.R. at 46). Trooper Wong turned his car around to follow the pickup. (3 R.R. at 47).

Wong testified that driving a vehicle driving at a low speed without an apparent reason

might be a sign of an intoxicated driver. (3 R.R. at 47).        Wong testified that the

pickup swerved within its own lane. (4 R.R. at 48). As Wong was following the

pickup, he saw its left turn signal activate where there was nowhere on the road to turn

left. (3 R.R. at 48-49). The pickup then drove on the improved shoulder on the right

side of the road. (3 R.R. at 49). The then traveled from the shoulder to the left-hand

turn lane and stopped. (3 R.R. at 50). Trooper Wong turned on his overhead lights

and Appellant stepped out of the driver’s seat of the vehicle. (3 R.R. at 53).

      Trooper Wong motioned for Appellant to come towards him so that they could

stand off out of the way of traffic. (3 R.R. at 55). When Wong and Appellant started

talking, Wong noticed Appellant to have a strong odor of alcoholic beverage, red

glassy eyes, and dilated pupils. (3 R.R. at 55, 60). Wong testified that Appellant had a

gazing stare “off into space.” (3 R.R. at 55-56). He testified that Appellant seemed

relaxed and carless. (3 R.R. at 56).




                                            2
       Trooper Wong told Appellant to stay where he was and went to check on the

passengers in the pickup. (3 R.R. at 57). Wong saw several open containers in the

pickup. (3 R.R. at 57). Based on his observation of the passengers in the vehicle, red

glassy eyes, strong odor of alcoholic beverages and open containers, Wong believed

the passengers to be intoxicated. (3 R.R. at 58).

       Wong attempted to perform field sobriety tests on Appellant. (3 R.R. at 61). As

Wong was attempting to administer the horizontal gaze nystagmus test, he noted

Appellant was swaying. (3 R.R. at 62-63). Wong stopped administering the tests

because of a language barrier: Appellant spoke Spanish and Wong did not speak

Spanish. (3 R.R. at 63). Wong testified that even though he was not able to administer

the field sobriety tests, he believed, based on the totality of the circumstances, that

Appellant had lost the normal use of his mental and physical faculties. (3 R.R. at 63-

67).

       After deciding to arrest Appellant, Wong performed a search incident to arrest of

Appellant’s person and found a plastic baggy with a white powdery substance from

Appellant’s pocket. (3 R.R. at 76-77). Based on his training and experience, Wong

testified that he believed it was a usable amount of cocaine. (3 R.R. at 78). Wong

testified that he packaged the baggy of the white substance and secured it in his trunk.

(3 R.R. at 79). Wong testified that he submitted the substance to the Brazoria County

Crime Lab on April 16 under lab number BCCL-14-0723. (3 R.R. at 79-83,88).




                                           3
       Wong testified that though he had not received training as a drug recognition

expert at the time of Appellant’s arrest, he had since then. (3 R.R. at 42, 89-90).

Wong testified that Appellant having dilated pupils on the night of his arrest was

consistent with cocaine Appellant’s use of cocaine. (3 R.R. at 90).

       Trooper Wong testified that after he makes an arrest for driving while

intoxicated he usually reads the arrested person a DIC 24. (3 R.R. at 94). This form

informs the arrested person of their right to refuse a blood or breath test and the

consequence of refusal. (3 R.R. at 94). Wong showed Appellant an electronic copy of

the DIC 24 in Spanish for Appellant to read and played an audio recording of the DIC

24 being read in Spanish. (3 R.R. at 95-97; 9 R.R. Exhibit 9). The audio requested a

specimen of blood. (3 R.R at 97).

       Wong testified that Appellant never refused to provide a specimen. (3 R.R. at

98).   Wong testified that he did not ask Appellant whether he would provide a

specimen of blood. (3 R.R. at 99). Wong took Appellant to the hospital. (3 R.R. at

99). They walked inside, sat down and waited for the person who would draw blood.

(3 R.R. at 99). Wong took the handcuffs off Appellant and told him to relax. (3 R.R at

99). When the nurse arrived, Appellant held out his arm. (3 R.R. at 101-102). Wong

testified Appellant never asked any questions, did not fight, refuse, indicate he was in

pain, pull back his arm, or do anything else suggesting that he did not consent to the

blood draw. (3 R.R. at 100-102).




                                           4
      Wong testified that Appellant’s blood was drawn by a hospital employee named

Nancy Lopez. (3 R.R. at 109). Wong provided the vials for the blood draw. (3 R.R. at

108). He witnesses the blood draw. (3 R.R. at 109-110). After the blood draw, he

flipped the test tubes back and forth, per procedure. (3 R.R. at 110). He then sealed

the vials into their box and marked them. (3 R.R. at 111). He secured the blood in the

trunk, then at some time he moved it to a locked refrigerator in his office. (3 R.R. at

112-113). He submitted the blood with the cocaine on April 16. (3 R.R. at 113).

      Wong testified that while he was in his car with Appellant, Appellant offered to

pay Wong money. Appellant told Wong he would give him some money, 200 or 300,

to let Appellant go home. (3 R.R. at 121, 160; 9 R.R. Exhibit 11). Wong testified that

he is a peace officer commissioned by the Department of Public Safety. (4 R.R. at 5).

When Appellant offered to pay him money, Wong was not a political figure, that he

was not being offered a political contribution, or being offered an expenditure made in

accordance with the Texas Government Code. (5 R.R. at 5).

Testimony of Nancy Lopez

      Nancy Lopez a phlebotomist employed at Angleton Danbury Hospital at the

time of Appellant’s arrest was called to testify by the State. (3 R.R. at 165-166). She

drew Appellant’s blood. (3 R.R. at 168). She testified that she speaks both English

and Spanish. (3 R.R. at 168). She testified that Appellant did not fight her or give her

any indication that he did not want his blood drawn. (3 R.R. at 168, 172). She

testified that the blood draw occurred in a sterile room: the triage room of the hospital.

                                            5
(3 R.R. at 169). She used either iodine or betadine to clean Appellant’s arm before the

blood draw. (3 R.R. at 173). She indicated that her name along with 4/12 at 4:02 a.m.

was written on the vials in evidence. (3 R.R. at 170-171).

Testimony of Marcy Farley

      Marcy Farley, an AFIS latent print examiner, employed by the Brazoria County

Sheriff’s Department, testified at trial. (3 R.R. at 175). She took Appellant’s prints the

morning of her testimony.      (3 R.R. at 178).     She compared those prints to the

fingerprints on State’s Exhibits 13, 14, and 15. (3 R.R. at 179). She testified that the

prints she took from Appellant matched those on State’s Exhibits 13, 14, and 15. (3

R.R. at 180). State’s Exhibits 13, 14, and 15, records of prior convictions for Driving

While Intoxicated offenses styled State of Texas v. Carlos Gallegos, were admitted

without objection. (3 R.R. at 180; 9 R.R. Exhibits 13, 14, and 15).

Testimony of Paul Van Dorn

      Paul Van Dorn, lead chemist of the Brazoria County Crime Lab was called to

testify by the State. (3 R.R. at 184). He testified that the Brazoria County Crime Lab

is accredited by the American Society of Crime Laboratory Directors Laboratory

Accreditation Board and Texas Department of Public Safety. (3 R.R. at 186, 205).

      Mr. Van Dorn testified that he performed a presumptive microcrystalline test

and a KOH odor test on the off-white powder substance submitted to the lab under

number BCCL-14-0723. (3 R.R. at 194-195). Both tests indicated that the substance

was cocaine, so Mr. Van Dorn proceeded to conduct a gas chromatograph mass

                                            6
spectroscopy on a gaseous extract of the substance. (3 R.R. at 195). This test also

indicated that the substance was cocaine. (3 R.R. at 196). Mr. Van Dorn testified that

it weighed 0.0248 grams. (3 R.R. at 198).

      Mr. Van Dorn testified that his records showed that the lab received the box of

Appellant’s blood on April 16, 2014. (3 R.R. at 202). His records reflect that the

blood was stored in the crime lab’s “bio C fridge” where evidence is stored prior to

testing. (3 R.R. at 202). Mr. Van Dorn tested Appellant’s blood for the presence of

alcohol by way of a Head Space FID analysis. (3 R.R. at 205). Mr. Van Dorn testified

that the test indicated that Appellant’s blood had .209 grams ethanol per 100 milliliters

of blood. (3 R.R. at 211). Mr. Van Dorn testified that Appellant was more than twice

the legal limit of intoxication. (3 R.R. at 211).

Testimony of Appellant at Punishment

      Appellant, Carlos Gallegos, testified during the punishment phase of trial. (5

R.R. at 6). He testified that he lived around Houston and had family in Rosharon. (5

R.R. at 6-7). He testified that he worked in construction and as a welder. (5 R.R. at

7). He testified that he had never before been convicted of a felony. (5 R.R. at 7-8).

      He testified that he had been on probation before and had his probation revoked

because he did not go to the Alcoholics Anonymous classes. (5 R.R. at 10). He

testified that he understood that if he were granted probation, that he would have to

comply with intensive counseling conditions and possibly inpatient treatment. (5 R.R.




                                             7
at 11-12). Understanding this, he asked the jury to sentence him to probation. (5 R.R.

at 12).

          He testified that he did not agree with the jury’s verdict regarding the bribery

charge. (5 R.R. at 12-13). He testified that he had the cocaine because a person that

he did not know in the parking lot of a gas station gave it to him. (5 R.R. at 13).

          Appellant testified that he had been at a bar in Alvin the night of his arrest. (5

R.R. at 16). He testified that he had two or three beers at the bar. (5 R.R. at 17). Prior

to arriving at the bar, he had some beer. (5 R.R. at 18-19).




                                               8
                     APPELLANT’S FIRST POINT OF ERROR

      The evidence is insufficient to support the trial court’s order that Appellant

reimburse Brazoria County Collections Department for the payment of counsel

appointed on account of Appellant’s indigence.

Standard of Review and Applicable Law

      An appellate court reviewing an order to repay court appointed attorney’s fees

reviews the record to determine whether there is sufficient evidence to support the

order. Mayer v. State, 309 S.W.3d 552, 555-56 (Tex. Crim. App. 2013). Evidentiary

sufficiency “is measured by viewing all of the record evidence in the light most

favorable to the verdict.” Id. at 557. Ordinarily, sufficiency of the evidence may be

raised for the first time on appeal, without an objection at the trial court level. Mayer,

309 S.W.3d at 556.

     A trial court’s authority to order that defendant repays attorney’s fees as court

costs after a conviction stems from Tex. Code Crim. Proc. Ann. Art. 26.05(Lexis

current through 2013 3d C.S.). Once a defendant has been found to be indigent, the

defendant is “presumed to remain indigent for the remainder of the proceedings in the

case unless a material change in the defendant’s financial status occurs.” Tex. Code

Crim. Proc. Ann. Art. 26.04(p)(Lexis current through 2013 3d C.S.). The trial court

may only order that a defendant repay his court appointed attorney’s fees,

       [i]f the court determines that a defendant has financial resources that enable
       him to offset in part or in whole the costs of the legal services provided,
       including any expenses and costs, the court shall order the defendant to pay
       during the pendency of the charges or, if convicted, as court costs the amount
                                            9
      that it finds the defendant is able to pay.
Tex. Code Crim. Proc. Ann. Art. 26.05(g)(Lexis current through 2013 3d C.S.).

Relevant Facts

       Appellant was appointed trial counsel on December April 22, 2014. (73552

Supp. C.R. at 4). According to the notice of appointment, Appellant was in jail at the

time of appointment. (73552 Supp. C.R. at 4). After trial, the trial court ordered

Appellant to repay $3,000 in attorney’s fees. (73552 C.R. at 63). There is no evidence

that Appellant posted bail during the pendency of this case as there is no bail bond

filed in the record.

       There is no affidavit of indigence in the record in this cause, or its companion

causes, which are also on appeal before this Court.          There is no evidence of

Appellant’s finances other than that he was appointed counsel for trial and appeal, he

was incarcerated at the time of the appointment, and does not to appear to have made

bail prior to trial.

Analysis

       There is no evidence supporting the trial court’s order that Appellant repay his

court appointed attorney’s fees. While in jail, Appellant was appointed trial counsel.

(73552 Supp. C.R. at 4). After Appellant was convicted, the trial court ordered that he

repay attorney’s fees in the amount of $3,000.00. (73552 C.R. at 63).

       The facts related to the application for a court appointed attorney and the trial

court’s order to repay attorney’s fees are almost identical between Mayer v. State and

Appellant’s case. See Mayer, 309 S.W.3d 552. In Mayer, the defendant filed an
                                           10
Affidavit of Financial Status including “a request for a court appointed attorney to

represent him because he did not have the financial ability to hire his own attorney.”

Mayer, 309 S.W.3d at 554.        The affidavit stated that he was unemployed and

supporting himself on government benefits. Id. After he was convicted, the defendant

filed a pro se notice of appeal and an affidavit of financial status again requesting

appointed counsel. Id. There was no evidence in the record in Mayer that supported

the trial court’s order that the defendant repay the court appointed attorney’s fees. Id.

at 556.

      Appellant was found to be indigent at the inception of this case and was

appointed a court appointed attorney to represent him at trial. (73552 Supp. C.R. at 4).

      After being convicted, the court found the Appellant to be indigent and

appointed the Appellant counsel on appeal. (73552 C.R. at 65). Appellant was in jail

at the time counsel was appointed. (73552 Supp. C.R. at 4) There is no evidence in the

record that he ever posted bail on any of these causes. As in Mayer, there is no

evidence in the record to support the trial court’s order that Appellant repay his court

appointed attorney’s fees.

      The trial court may only order a defendant to repay his court appointed attorney

if “the court determines that a 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. Ann. Art. 26.05(g).     A court’s finding that a defendant has such financial

resources that would enable him to offset the cost of legal services provided must be

                                           11
supported by evidence in the record. Barrera v. State, 291 S.W.3d 515, 518 (Tex. App.

--Amarillo 2009, no pet.). There is no evidence in the record to support a finding that

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

costs of the legal services provided.” As such, the evidence supporting the court’s

order that Appellant repay his court appointed attorney’s fees is legally insufficient and

has no basis in the record.

      The court of appeals in Mayer reformed the trial court’s judgment to delete the

paragraph ordering the defendant to repay attorney’s fees. Mayer v. State, 274 S.W.3d

898, 901-02 (Tex. App. Amarillo 2008, pet. granted.). The Court of Criminal Appeals

found this to be the proper remedy. Mayer, 309 S.W.3d at 557.

      Appellants prays that this Court find that there is no evidence supporting the

trial court’s order that the Appellant repay his court appointed attorney fees and reform

the judgment to remove the order.

                          CONCLUSION AND PRAYER

      The Appellants prays that this Court find that there is no evidence supporting

the trial court’s order that the Appellant repay his court appointed attorney fees and

reform the judgment to remove the order. Appellant prays for any and all relief for

which he may be eligible under the law


Respectfully submitted,

/s/ Joseph Kyle Verret
Joseph Kyle Verret
THE LAW OFFICE OF KYLE VERRET, PLLC
                                           12
Counsel for Appellant
TBN: 240429432 47
11200 Broadway, Suite 2743
Pearland, Texas 77584
Phone: 281-764-7071
Fax: 281-764-7071
Email: kyle@verretlaw.com



                           CERTIFICATE OF SERVICE

      I certify that a true and correct copy of the foregoing Brief for Appellant was

served on the Counsel for the Appellee, David Bosserman, at the Criminal District

Attorney’s Office of Brazoria County, Texas, by service through electronic filing on

this 20th day of April, 2015.


/s/Joseph Kyle Verret
Joseph Kyle Verret
TBN: 2402932


                        CERTIFICATE OF WORD COUNT

      I do hereby certify that the total word count for this document is 2,871

excluding those parts specifically excluded in Texas Rule of Appellate Procedure

9.4(i)(1) which is less than 15,000 words allowed per Texas Rule of Appellate

Procedure 9.4.


/s/Joseph Kyle Verret
Joseph Kyle Verret
TBN: 2402932



                                          13
