                                IN THE
                        TENTH COURT OF APPEALS

                               No. 10-12-00252-CR

GARETH JABAR RICHARDS,
                                                          Appellant
v.

THE STATE OF TEXAS,
                                                          Appellee



                          From the 54th District Court
                           McLennan County, Texas
                          Trial Court No. 2011-935-C2


                                   OPINION


      In one issue, appellant, Gareth Jabar Richards, argues that the trial court abused

its discretion by requiring him to pay court-appointed attorney’s fees assessed in a

deferred-adjudication order. We affirm.

                                  I.      BACKGROUND

      On April 6, 2011, appellant was charged by indictment with a state-jail felony—

unlawful possession of a controlled substance, marihuana, in an amount greater than

four ounces but less than five pounds.     See TEX. HEALTH & SAFETY CODE ANN. §
481.121(a), (b)(3) (West 2010).       Appellant subsequently filed a request for a court-

appointed attorney.        The trial court concluded that appellant was indigent and

appointed him counsel.

        Thereafter, appellant entered into a plea agreement with the State. In exchange

for pleading guilty to the charged offense, the State recommended that appellant be

placed on community supervision and pay a $1,000 fine. The trial court accepted the

plea agreement, deferred an adjudication of guilt, and placed appellant on community

supervision for four years with a $1,000 fine.1                   Furthermore, after receiving

admonishments from the trial court, appellant executed an express written waiver of

appeal with regard to the deferred-adjudication order. In addition, the trial court

signed a certification of appellant’s right of appeal, wherein the trial court indicated that

appellant had waived his right of appeal. Consequently, appellant did not pursue an

appeal at that time. See TEX. CODE CRIM. PROC. ANN. art. 42.12, § 23(b) (West Supp.

2012) (“The right of the defendant to appeal for a review of the conviction and

punishment, as provided by law, shall be accorded the defendant at the time he is

placed on community supervision.”).

        However, in the deferred-adjudication order, the trial court assessed $856 in

court costs. The bill of costs attached to the order indicates that the court costs included

$400 in court-appointed attorney’s fees.           Condition 16 of the deferred-adjudication

order required appellant to pay these court costs at a rate of $25 per month.



        1Appellant was also ordered “to pay restitution to the Texas DPS Lab in the amount of $140.00;
and 12.45 unfiled prohibited substance in correction[a]l facility.”

Richards v. State                                                                              Page 2
        On May 29, 2012, the State filed a motion to adjudicate guilt, alleging fourteen

violations.     Once again, the trial court determined appellant to be indigent and

appointed him counsel.      At the hearing on the State’s motion to adjudicate guilt,

appellant pleaded “true” to eleven of the violations alleged in the State’s motion. At the

conclusion of the hearing, the trial court: (1) concluded that appellant had violated the

terms and conditions of his community supervision; (2) found appellant guilty of the

underlying offense; and (3) assessed punishment at twenty-four months’ confinement

in the State-Jail Division of the Texas Department of Criminal Justice with a $1,000 fine.

The trial court also assessed court costs of $1,361, which included the $400 in court-

appointed attorney’s fees previously assessed in the deferred-adjudication order and an

additional $500 in court-appointed attorney’s fees for the adjudication proceeding. The

trial court certified appellant’s right of appeal, and appellant subsequently filed his

notice of appeal on July 6, 2012.

        One month later, on August 6, 2012, appellant filed a motion for judgment nunc

pro tunc in the trial court, complaining about the assessment of court-appointed

attorney’s fees. The trial court ostensibly granted appellant’s motion by signing a

judgment nunc pro tunc, which reflected an elimination of the $500 in court-appointed

attorney’s fees assessed for the adjudication hearing. However, the amended bill of

costs still reflected the $400 in court-appointed attorney’s fees assessed in the deferred-

adjudication order. It is the assessment of $400 in court-appointed attorney’s fees from

which appellant now appeals.




Richards v. State                                                                    Page 3
                                       II.    ANALYSIS

        In his sole issue on appeal, appellant contends that the evidence is insufficient to

prove that his financial circumstances changed during the pendency of the proceedings.

Accordingly, the trial court abused its discretion by requiring him to pay his court-

appointed attorney’s fees in the deferred-adjudication order.         The Texas Court of

Criminal Appeals recently resolved this precise issue in Wiley v. State, No. PD-1728-12,

2013 Tex. Crim. App. LEXIS 1464 (Tex. Crim. App. Sept. 25, 2013).

        In Wiley, the court concluded that a defendant procedurally defaults on his claim

that the record does not support the trial court’s assessment of court-appointed

attorney’s fees during the initial guilty-plea proceedings when he fails to bring a direct

appeal from the initial judgment. See id. at **21-23. Specifically, the Wiley court noted

the following:

        The reimbursement of attorney fees was not imposed upon the appellant
        only as a condition of community supervision. On authority of Article
        26.05(g) of the Code of Criminal Procedure, the judgment independently
        imposed an obligation to repay attorney fees—“as court costs.” That one
        of the conditions of community supervision also made the fulfillment of
        that obligation necessary if the appellant wanted to maintain his status as
        probationer does not mean that he was not otherwise obliged to do it in
        satisfaction of the judgment. In this respect, the requirement to pay court
        costs was not comparable to that sort of conditions of community
        supervision that the appellant invokes, such as reporting regularly to a
        probation officer, submitting to drug testing, or satisfying community
        service requirements.

                ....

               The requirement that the appellant pay court costs did not exist
        solely as a function of the probationary contract between the appellant
        and the trial court. Because the obligation to pay attorney fees was
        already imposed by the judgment as a court cost, a reviewing court may

Richards v. State                                                                     Page 4
        treat it for purposes of appeal as it would treat any other judgment
        obligation for purposes of an evidentiary sufficiency claim; that is, a
        reviewing court may inquire whether the record rationally supports that
        obligation even in the absence of an objection in the trial court. In short,
        Mayer, not Speth, controls.

                ....

               But this also necessarily means that the appellant could readily
        have raised this sufficiency claim in a direct appeal from the initial
        judgment imposing community supervision. Failing to do so, we hold,
        constituted a procedural default under Manuel. The record in this case
        shows that the appellant was well aware of the existence and the amount
        of the attorney fees that were imposed for his court appointed
        representation during the plea proceedings. The bill of costs was dated
        the same day as the judgment imposing community supervision and was,
        by the terms of the judgment itself—as indicated in bold capital letters—
        attached. By his signature, the appellant expressly acknowledged having
        read and understood the conditions of community supervision. Under
        these circumstances, the presumption of regularity applies, and we must
        conclude that the appellant was aware of the requirement that he pay
        court costs, including the cost of court appointed attorney fees, even as of
        the time he signed the judgment. He would therefore have known to
        challenge the sufficiency of the evidence to support this requirement as of
        the time of any direct appeal from that judgment.

               Instead of doing so, he waived his right to appeal, though not
        required to do so by the terms of any negotiation with the State.
        Whatever else could be said about such a waiver of appeal, it was
        certainly executed knowingly with respect to any possible claim that the
        record did not support the assessment of attorney fees. That he chose to
        forego that appeal must work as a forfeiture of the claim, and he may not,
        consistent with our case law, attempt to resuscitate it in a later appeal
        from the revocation of his community supervision.

Id. at **19-23 (internal citations & footnotes omitted) (emphasis in original).

        The fact scenario in the instant case is virtually identical to that in Wiley. Here,

the deferred-adjudication order, signed on September 13, 2011, assessed court costs at

$856. Condition 16 of the deferred-adjudication order directs appellant to “SEE THE


Richards v. State                                                                      Page 5
ATTACHED BILL OF COSTS” (emphasis in original). The bill of costs, which was

dated the same day as the judgment imposing community supervision and assessing

the court costs, reflected that appellant is obligated to pay as court costs $400 in court-

appointed attorney’s fees. Appellant chose not to appeal the deferred-adjudication

order. Instead, on the same day as the judgment was signed and the bill of costs was

produced, appellant executed an express written waiver of appeal with respect to the

deferred-adjudication order, though he was not required to do so by the terms of any

negotiation with the State. Only after his community supervision was revoked did

appellant choose to appeal the trial court’s assessment of court-appointed attorney’s

fees in the deferred-adjudication order.

        Like Wiley, “[u]nder these circumstances, the presumption of regularity applies,

and we must conclude that the appellant was aware of the requirement that he pay

court costs, including the cost of court appointed attorney fees, even as of the time he

signed the judgment.” Id. at *22 (citing Breazeale v. State, 683 S.W.2d 446, 450 (Tex. Crim.

App. 1984) (“[T]his Court will indulge every presumption in favor of the regularity of

documents in the trial court. This means that the recitations in the records of the trial

court, such as a formal judgment, are binding in the absence of direct proof of their

falsity.”)). Accordingly, appellant should have known “to challenge the sufficiency of

the evidence to support this requirement as of the time of any direct appeal from that

judgment.” Id. Appellant chose not to do so; instead, he waived his right to appeal the

deferred-adjudication order.     Accordingly, like Wiley, we conclude that appellant

procedurally defaulted his claim about the assessment of court-appointed attorney’s

Richards v. State                                                                     Page 6
fees in the deferred-adjudication order and may not “attempt to resuscitate it in a later

appeal from the revocation of his community supervision.” Id. at **22-23 (citing Manuel

v. State, 994 S.W.2d 658, 661 (Tex. Crim. App. 1999)). We therefore overrule appellant’s

sole issue on appeal.

                                    III.   CONCLUSION

        Having overruled appellant’s sole issue on appeal, we affirm the judgment of the

trial court.




                                                AL SCOGGINS
                                                Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed November 21, 2013
Publish
[CR25]




Richards v. State                                                                  Page 7
