                                                                      ACCEPTED
                                                                 12-14-00159-CR
                                                     TWELFTH COURT OF APPEALS
                                                                  TYLER, TEXAS
                                                             1/7/2015 8:28:26 PM
                                                                    CATHY LUSK
                                                                          CLERK

            ORAL ARGUMENT NOT REQUESTED

                   NO. 12-14-00159-CR            FILED IN
                                          12th COURT OF APPEALS
                                               TYLER, TEXAS
               IN THE COURT OF APPEALS     1/7/2015 8:28:26 PM
                 12TH JUDICIAL DISTRICT        CATHY S. LUSK
                                                   Clerk
                       TYLER, TEXAS



                  BRANDON SIMMONS,
                     APPELLANT


                             VS.


                  THE STATE OF TEXAS,
                       APPELLEE


       ON APPEAL IN CAUSE NUMBER 114-0139-10
       FROM THE 114th JUDICIAL DISTRICT COURT
             OF SMITH COUNTY, TEXAS
    HONORABLE CHRISTI KENNEDY, JUDGE PRESIDING


                  APPELLANT’S BRIEF

JAMES W. HUGGLER, JR.
100 E. FERGUSON, SUITE 805
TYLER, TEXAS 75702
903-593-2400
STATE BAR NUMBER 00795437

ATTORNEY FOR APPELLANT
             IDENTITY OF PARTIES AND COUNSEL

APPELLANT:
    Brandon Simmons

APPELLANT’S TRIAL COUNSEL
    LaJuanda Lacy
    2419 Cecil
    Tyler, Texas 75702
    903-592-8335

     Brent Ratekin
     422 South Spring
     Tyler, Texas 75702
     903-595-1516

     Melvin Thompson
     2108 South Wall
     Tyler, Texas 75701
     903-596-7856

APPELLANT’S APPELLATE COUNSEL
    James Huggler
    100 E. Ferguson, Suite 805
    Tyler, Texas 75702
    903-593-2400
    903-593-3830 (fax)

APPELLEE
    The State of Texas

APPELLEE’S TRIAL COUNSEL
    Whitney Boatright Tharpe
    Chris Gatewood
    Jacob Putman
    Smith County Criminal District Attorney’s Office
    100 N. Broadway, 4th Floor
                                 ii
     Tyler, Texas 75702
     903-590-1720
     903-590-1719 (fax)

APPELLEE’S APPELLATE COUNSEL
    Michael West
    Smith County Criminal District Attorney’s Office
    100 N. Broadway, 4th Floor
    Tyler, Texas 75702
    903-590-1720
    903-590-1719 (fax)




                                 iii
                                  TABLE OF CONTENTS
                                                                                               PAGE

IDENTITY OF PARTIES AND COUNSEL. . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

ISSUE PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

        ISSUE ONE: The trial court erred in imposing attorney fees
        following a finding that Mr. Simmons was indigent and was
        appointed counsel.

STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

ISSUE ONE, RESTATED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

        A. Law on Attorney Fees. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
        B. Standard of Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
        C. Application to These Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
        D. Remedy and Relief Requested.. . . . . . . . . . . . . . . . . . . . . . . . . 11

PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

CERTIFICATE OF SERVICE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . 12



                                                    iv
                               TABLE OF AUTHORITIES
STATUTES
TEX. CODE CRIM. PROC. ANN. art. 26.04(p) (West 2009).. . . . . . . . . . . . . 5
TEX. CODE CRIM. PROC. ANN. art. 26.05(g) (West 2009). . . . . . . . . . . . . . 5
TEX. CODE CRIM. PROC. ANN. art. 103.001 (West 2009). . . . . . . . . . . . . . 6
TEX. GOV’T CODE ANN. §§ 102.001-.142 (West 2009). . . . . . . . . . . . . . . . 6
TEX. GOV’T CODE ANN. § 102.021 (West 2009). . . . . . . . . . . . . . . . . . . . . 6
TEX. GOV’T CODE ANN. § 103.006 (West 2009). . . . . . . . . . . . . . . . . . . . . 7
TEX. HEALTH & SAFETY CODE ANN. §481.115 (a) and (c) (West 2009). 2, 3
TEX. PENAL CODE ANN. § 12.42(a)(3) (West 2009). . . . . . . . . . . . . . . . 2, 3


CASES
Armstrong v. State, 340 S.W.3d 759 (Tex. Crim. App. 2011). . . . . . . 6, 7
Howell v. State, 175 S.W.3d 786, 792 (Tex. Crim. App. 2005).. . . . . . . . 8
Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781,
   61 L. Ed. 2d 560 (1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Johnson v. State, 423 S.W.3d 385, 390 (Tex. Crim. App. 2014). . . . . 7, 8
Johnson v. State, 405 S.W.3d 350, 354 (Tex. App. – Tyler
   2013, no pet). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 8
Mayer v. State, 309 S.W.3d 552, 557 (Tex. Crim. App. 2010). . . . . . . 5, 8
Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1991). . . . 8
Owen v. State, 352 S.W.3d 542, 5148 (Tex. App. – Amarillo
   2011, no pet). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7
Weir v. State, 278 S.W.3d 364, 367 (Tex. Crim. App. 2009). . . . . . . . . . 6
Williams v. State, 332 S.W.3d 694, 699 (Tex. App. – Amarillo
   2011, pet. denied). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 8


                                                   v
RULES
TEX. R. APP. PROC. 9.4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
TEX. R. APP. PROC. 38. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1




                                                  vi
                                 NO. 12-14-00159-CR


BRANDON SIMMONS                               §   IN THE COURT OF APPEALS
APPELLANT                                     §
                                              §
VS.                                           §   12TH JUDICIAL DISTRICT
                                              §
THE STATE OF TEXAS,                           §
APPELLEE                                      §   TYLER, TEXAS


                                APPELLANT’S BRIEF


TO THE HONORABLE COURT OF APPEALS AND THE JUSTICES
THEREOF:


       Comes now Brandon Simmons, (“Appellant”), by and through his

attorney of record, James Huggler, and pursuant to the provisions of TEX.

R. APP. PROC. 38, et seq., respectfully submits this brief on appeal.




                           STATEMENT OF THE CASE

       Appellant was indicted in Cause Number 114-0139-105 for the third

degree felony offense of possession of a controlled substance. I CR 31; see

       1
        References to the Clerk’s Record are designated “CR” with a roman numeral preceding
“CR” indicating the correct volume and an arabic numeral following “CR” specifying the correct
                                               1
TEX. HEALTH & SAFETY CODE ANN. §481.115(a) and (c) (West 2009). The

punishment range was enhanced to that of a second degree felony with the

inclusion of a prior felony conviction. I CR 3; TEX. PENAL CODE ANN.

§12.42(a)(3) (West 2009). Mr. Simmons entered a plea of guilty pursuant

to an agreement and received probation. I RR 13; II RR 5, 9-102.

       The State filed a motion to revoke his probation, Mr. Simmons

entered true pleas to the allegations. I CR 72-73, 83; VI RR 11. Following

evidence and argument of counsel, the court sentenced Mr. Simmons to

eight years confinement. I CR 84-85; VI RR 22. Notice of appeal was

timely filed in on June 18, 2014. I CR 87. This Brief is timely filed on or

before January 7, 2015 following proper extension granted by this Court.




page in the record.

       2
         References to the Reporter’s Record are designated “RR” with a roman numeral
preceding “RR” indicating the correct volume, and an arabic numeral following “RR” specifying
the correct page.
                                               2
                          ISSUE PRESENTED

ISSUE ONE: THE TRIAL COURT ERRED IN IMPOSING ATTORNEY
FEES FOLLOWING A FINDING THAT MR. SIMMONS WAS
INDIGENT AND WAS APPOINTED COUNSEL.




                     STATEMENT OF THE FACTS

     Appellant was indicted in Cause Number 114-0139-105 for the third

degree felony offense of possession of a controlled substance, specifically

methamphetamine in an amount between one and four grams. I CR 3; see

TEX. HEALTH & SAFETY CODE ANN. §481.115(a) and (c) (West 2009). The

punishment range was enhanced to that of a second degree felony with the

inclusion of a prior felony conviction. I CR 3; TEX. PENAL CODE ANN.

§12.42(a)(3) (West 2009). Mr. Simmons entered a plea of guilty pursuant

to an agreement and received probation. I RR 13; II RR 5, 9-10.

     Mr. Simmons was placed in the Substance Abuse Felony

Punishment Facility and successfully completed probation. I CR 54-57,

59-61. Conditions of his probation were modified allowing work and

status hearings were held regarding an apparent invalid arrest and

driving with a suspended license.
                                     3
     The State filed a motion to revoke his probation alleging a use of

marijuana.    I CR 72-73.    Mr. Simmons entered true pleas to the

allegations. I CR 72-73, 83; VI RR 11. Following evidence and argument

of counsel, the court sentenced Mr. Simmons to eight years confinement.

I CR 84-85; VI RR 22. Further discussion of relevant facts is included

below.




                       SUMMARY OF ARGUMENT

     The error for this Court to consider involves the improper

assessment of court costs. The trial court improperly ordered

reimbursement of attorney fees after Mr. Simmons was found to be

indigent and was appointed counsel. The attorney fees were included in

the judgment placing him on probation, and were collected. Because there

was never any allegation that Mr. Simmons failed to pay any required fees

or costs, Smith County collected $300 from Mr. Simmons to which legally

it was not entitled.




                                    4
                              ARGUMENT

ISSUE TWO, RESTATED: THE TRIAL COURT ERRED IN IMPOSING
ATTORNEY FEES FOLLOWING A FINDING THAT MR. SIMMONS
WAS INDIGENT AND WAS APPOINTED COUNSEL.


                       A. Law on Attorney’s Fees

     A trial court has the authority to assess attorney’s fees against a

criminal defendant who received court-appointed counsel. TEX. CODE

CRIM. PROC. ANN. art. 26.05(g)(West 2009). Once a defendant has been

determined to be indigent, he is presumed to remain indigent for the

remainder of the proceedings unless a material change in his financial

circumstances occurs. TEX. CODE CRIM. PROC. ANN. art. 26.04(p) (West

2009). Before attorney’s fees may be imposed, the trial court must make

a determination supported by some factual basis in the record that the

defendant has financial resources to enable him to offset in whole or in

part the costs of the legal services provided. Johnson v. State, 405 S.W.3d

350, 354 (Tex. App. – Tyler 2013, no pet). If the record does not show any

material change in the defendant’s financial circumstances, the evidence

will be insufficient to support the imposition of attorney’s fees. TEX. CODE

CRIM. PROC. ANN. art. 26.04(p); Mayer v. State, 309 S.W.3d 552, 553, 557

                                     5
(Tex. Crim. App. 2013).

     Court costs are pre-determined, legislatively-mandated obligations

resulting from a conviction. See, e.g., TEX. GOV'T CODE ANN. §§

102.001-.142 (West 2009) (setting forth various court costs that a

convicted person "shall" pay).    A sentencing court shall impose the

statutory court costs at the time a defendant is sentenced. Armstrong v.

State, 340 S.W.3d 759 (Tex. Crim. App. 2011); TEX. GOV’T CODE ANN.

§102.021 (West 2009). Court costs are not punitive in nature and do not

have to be included in an oral pronouncement of a sentence. Weir v.

State, 278 S.W.3d 364, 367 (Tex. Crim. App. 2009).

     A cost is not payable by the person charged with the cost until a

written bill is produced or is ready to be produced, containing the items

of cost, signed by the officer who charged the cost or the officer who is

entitled to receive payment of the cost. TEX. CODE CRIM. PROC. ANN. art.

103.001 (West 2009). The clerk of the trial court is required to keep a fee

record, and a statement of an item therein is prima facie evidence of the

correctness of the statement. Owen v. State, 352 S.W.3d 542, 548 (Tex.

App.—Amarillo 2011, no pet.) (citing TEX.CODE CRIM. PROC. ANN. art.

103.009(a), (c)). Until a certified bill of costs has been made part of the
                                     6
record, a defendant has no obligation to pay court costs. Owen, 352

S.W.3d at 547 (citing Armstrong, 340 S.W.3d at 765; Williams v. State,

332 S.W.3d 694, 699 (Tex. App. – Amarillo 2011, pet. denied). In this case,

the only bill of costs ever prepared to support any amount of court costs

was prepared on June 19, 2014, more than four years after the attorney

fee was assessed. I CR 98, 46-47.

      If a criminal action is appealed, "an officer of the court shall certify

and sign a bill of costs stating the costs that have accrued and send the

bill of costs to the court to which the action or proceeding is transferred or

appealed." TEX. CODE CRIM. PROC. ANN. art. 103.006 (West 2009).




                          B. Standard of Review

      The imposition of court costs upon a criminal defendant is a

“nonpunitive recoupment of the costs of judicial resources expended in

connection with the trial of the case.” Johnson v. State, 423 S.W.3d 385,

390 (Tex. Crim. App. 2014). When the imposition of court costs is

challenged on appeal, the court reviews the assessment of costs to

determine if there is a basis for the cost, not to determine if there is

                                      7
sufficient evidence offered at trial to prove each cost. Johnson, 423 S.W.3d

at 390.

     The standard for reviewing a legal sufficiency challenge is whether

any rational trier of fact could have found the essential elements of the

offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. at

315-16, 99 S. Ct. at 2786-787; see also Mayer v. State, 309 S.W.3d 552,

557 (Tex. Crim. App. 2010)(sufficiency review of evidence to support order

of repayment of attorney fees as costs).

     A challenge to a withdrawal of funds notification is reviewed for an

abuse of discretion. Williams, 332 S.W.3d at 698. A trial court abuses

its discretion when it acts “without reference to any guiding rules and

principles. Howell v. State, 175 S.W.3d 786, 792 (Tex. Crim. App. 2005);

Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1991). The

reviewing court may modify a withdrawal order on direct appeal if the

evidence is insufficient to support the assessment of court costs. Johnson

v. State, 405 S.W.3d at 355.




                                     8
                      C. Application to These Facts

     Mr. Simmons has been represented at all times following the initial

trial of the case by appointed counsel. The record contains three different

orders appointing counsel. I CR 77, 80. Each pauper’s oath application

contains a finding that Mr. Simmons was indigent. I CR 78-79; II CR 16-

17. Mr. Simmons was represented at various times in the course of this

case by each of the three trial attorneys contracted to provide indigent

defense in the 114th District Court.      Finally, appellate counsel was

appointed for this appeal. I CR 80. A motion was filed with the trial court

seeking a free reporter’s record on appeal. I CR 91-93. This motion was

granted by the trial court without opposition from the State of Texas. I

CR 94.

     The June 2, 2010 judgment and order placing Mr. Simmons on

probation included an assessment of $580.00 in court costs. I CR 46-47,

49, line 21. This amount exactly exceeds the bill of costs prepared more

than four years later by $300.00. I CR 98. The final judgment signed July

16, 2014 reflects a zero balance for court costs, as doers the bill of costs.

I CR 84 and 98.


                                      9
     Each item listed on the bill of costs appear to be properly assessed

costs. I CR 98. The properly assessed costs equal $280.00 in court costs.

However, Smith County collected $580. As this Court is aware from

dozens of other cases, some district courts have routinely assessed a $300

fee for costs of an attorney appointed after a finding that a defendant is

indigent.

     There is no evidence to contest the finding that Mr. Simmons was

found indigent. Assessment of attorney’s fees following a finding of

indigence is improper. While the final judgment does not include the

attorney’s fee, judgment placing him on community supervision does, and

there was no allegation that Mr. Simmons ever failed to make required

financial payments. Why the bill of costs does not contain the fee which

was assessed four years previously is not known, but it is certainly

reasonable to conclude that this particular trial court has learned from the

number of cases modified on this issue not to assess the $300 fee for

attorney costs.




                                     10
                    D. Remedy and Relief Requested

     The fee seeking reimbursement for the appointed attorney was

improperly assessed by the court.         The original judgment should be

modified to reflect the true amount of court costs as assessed in the bill of

costs and the $300 should be ordered to be returned to Mr. Simmons.

                         PRAYER FOR RELIEF

     WHEREFORE, PREMISES CONSIDERED, Counsel respectfully

prays that this Court modify the judgment of the trial court and order

Smith County to reimburse Mr. Simmons the improperly assessed $300

.

                                      Respectfully submitted,


                                       /s/ James Huggler
                                      James W. Huggler, Jr.
                                      State Bar Number 00795437
                                      100 E. Ferguson, Suite 805
                                      Tyler, Texas 75702
                                      903-593-2400
                                      903-593-3830 fax
                                      ATTORNEY FOR APPELLANT



                                     11
                      CERTIFICATE OF SERVICE


A true and correct copy of the foregoing Brief of the Appellant has been
forwarded to counsel for the State by electronic filing on this the 7th day
of January, 2015.


/s/ James Huggler
James W. Huggler, Jr.



Attorney for the State:
Mr. Michael West
Smith County Criminal District Attorney’s Office
100 N. Broadway, 4th Floor
Tyler, Texas 75702



                   CERTIFICATE OF COMPLIANCE

I certify that this Brief complies with Tex. R. App. P. 9.4, specifically
using 14 point Century font and contains 2,484 words as counted by
Corel WordPerfect version x5.


/s/ James Huggler
James Huggler




                                     12
